Thomas, R v [2003] EWCA Crim 1555

Case No 200205207/1848/Z4[2003] EWCA Crim 1555
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 7th May 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE KENNEDY
MR JUSTICE HUNT
MR JUSTICE PITCHERS
Between
R E G I N ACrown-v-
Between
MICHAEL RAY THOMAS
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR T MUNYARD appeared for APPELLANTMR E BROWN appeared for CROWN
J U D G M E N T7th May 2003

LORD JUSTICE KENNEDY:

[1]This matter comes before us having been referred to the Court by the Criminal Cases Review Commission.[2]On 17th November 1993 at 10.25 a.m. there was a raid at a bookmakers in Upper Clapton Road, London. There was one armed raider who went inside that shop. It was the Crown's case that this appellant was also there acting as a look-out inside the shop and just inside the door. Police officers had been keeping watch upon this particular premises and possibly on others as well. As a result, whilst the raid was in progress, two armed police officers went into the bookmakers shop and one of those who was inside, namely this appellant, was arrested.[3]The Crown's case as developed at trial on 22nd July 1994 was that initially observation had been kept by two police officers, PC Douglas and PC Howlett, from a building on the other side of the road. According to PC Douglas he had seen two black men walking on the same side of the street as the bookmakers and talking to each other. One of them, the Crown said, was the appellant, clad in a black baseball cap and wearing a black jacket. The other was wearing a light brown jacket. It was the appellant's case at trial that if that was what the officer saw, the officer did not see him because he did not approach the bookmakers shop from that direction. According to the officer the two men went into the shop, and undoubtedly, from what was seen inside the shop, the man who carried the gun was wearing a light brown jacket.[4]A customer inside the shop, Mr Burke, saw a man with the gun going behind the counter and addressing the manager. He said that there was a second man by the door, that they were both black, but that he did not see the second man's face.[5]The two police officers who entered the bookmakers shop were Detective Constable Howell and Sergeant Miller. They passed the appellant, who was by the door, their eyes were undoubtedly on the man who was behind the counter, who, it was said, had a blue cloth over his face. According to the officers the appellant shouted "Run, old bill" by way of warning to what they claimed was his confederate, the man with the gun. According to the officers the man with the gun then dropped his blue cloth and ran.[6]The officers shouted, "Armed police, stand still". The man who had the gun, wearing the brown coat, ran into Sergeant Miller and at that stage, according to the officers, the appellant attempted to free his confederate by grabbing the Sergeant. The second officer, Detective Constable Howell, took hold of the appellant.[7]The appellant's case was that he was playing no part at all in any criminality. He was simply there because he had gone into this betting office in order to look at odds in relation to a forthcoming football match and he laid hands on nobody.[8]The struggle spilled out on to the pavement and at that stage the man who had the gun was able to escape, but the appellant was not. Other officers, Detective Constable Hayes and Detective Constable Smith, were involved in the arrest of the appellant. It was claimed that at that stage the appellant said, "Don't shoot me I haven't got the gun." It was the appellant's case that he never said anything about not having the gun. Furthermore, it was his case that, although it was contended for the Crown that he made an incriminating remark in relation to his confederate, he was not in fact asked about the other man at all.[9]At the Central Criminal Court on 22nd July of 1994 he was convicted of robbery, of possessing a firearm with intent on the basis, of course, that he was a party to the overall criminality, and he was by reason of those convictions in breach of a probation order which had been in existence at the time of the offending on 17th November of 1993, so he was sentenced to a total period of five years' imprisonment.[10]He appealed. His application for leave to appeal was refused. He renewed that application to the Full Court on 20th December 1994 and before the Full Court he failed to obtain leave. When dealing with the matter MacPherson J said this:
"The conflict between this applicant's evidence and that of DC Howlett was one of the central issues which the jury had to resolve."
[11]As we have already indicated, they resolved it by accepting the evidence of the police officer. (The reference there to DC Howlett was in fact an error; it was DC Howell who was the relevant officer).[12]However, in the late 1990s allegations emerged in relation to the Flying Squad officers who were based, as were the main officers concerned in this investigation, at Rigg Approach. In particular it was alleged that they had with them on many occasions what were described as first aid kits which consisted of items which they could plant on persons whom they believed to have committed offences. As a result of those investigations, Detective Sergeant Miller was prosecuted, but, for reasons with which we need not be concerned, that prosecution had to be brought to an end. Nevertheless, his conduct was investigated with the result that he was required to resign.[13]Detective Constable Howell, who had played a key part in the investigation with which we are concerned and indeed had been the second officer who had entered the betting office together with Sergeant Miller, was convicted of doing acts tending to pervert the course of justice and was sentenced to a period of seven years' imprisonment. That sentence has recently been confirmed, in that his appeal against, as we understand it, conviction and sentence has been dismissed.[14]Detective Constable Smith who played a somewhat lesser role in the present matter, in that he was one of the officers outside the betting office when the struggle spilled on to the street, has also been suspended. He would have been prosecuted but because of ill health no prosecution was pursued.[15]It is said on behalf of the appellant, and indeed is the substance of the reasons why the matter was referred to this Court by the Criminal Cases Review Commission, that as a result of all these events this conviction can no longer be regarded as safe and satisfactory. In the statement of reasons the Commission said this:
"The Crown's case relies heavily on the evidence of Detective Inspector Miller and Detective Constable Howell to demonstrate Mr Thomas's participation in the robbery and relies in part on DC Smith to corroborate the incriminating remarks attributed to Mr Thomas. The Commission believes that even if the other officers had been presented to the jury as untainted, and taking account of the evidence of the civilian witnesses, it cannot be said with confidence that the jury would have been bound to convict Mr Thomas had they known that the Crown did not regard Detective Sergeant Miller, Detective Constable Howell and Detective Constable Smith as witnesses of truth. The Commission considers that there is a real possibility that Mr Thomas's conviction would not be upheld were the case to be referred."
[16]As Mr Munyard has pointed out this morning, although Police Constable Douglas was not himself based at Rigg Approach, he was working with the officers who were and on the day of the incident with which we are concerned he undoubtedly made up his notes in broad terms at the same time as they made up theirs. Whether Detective Sergeant Miller was there throughout, or only for part of the time, is not a matter which we need investigate further, suffice to say that his association with those officers would of itself give rise to difficulty on the part of the jury when considering the reliability of his evidence.[17]Mr Burke to whom we have referred, the customer in the shop, did not see enough of what transpired to stand as a witness on whose word alone this conviction could be sustained. And in the light of the matters which have transpired Mr Brown, on behalf of the Crown, has taken the realistic stance that the Crown can no longer invite this Court to regard the conviction as safe. In our judgment, that must be right. Accordingly, this appeal against conviction is allowed. (Submissions made in relation to an application for leave to appeal against sentence)

LORD JUSTICE KENNEDY: The applicant applies for leave to appeal against sentence. We grant permission. He therefore becomes an appellant.

[19]On 18th June 2001 at the Central Criminal Court this appellant was convicted by a majority of possessing a firearm with intent to endanger life. He was sentenced to life imprisonment pursuant to section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 and the specified period for the purposes of section 28 of the Crime (Sentences) Act 1997 was declared to be four and a half years' imprisonment.[20]That prosecution arose out of what occurred on 12th August 2000. It was apparently on that occasion that the victim, a man named George Edwards, was induced to go to the home of a woman named Jacqueline Foster. He claimed that there he was threatened by the appellant's co-accused, a man named Dennis Stephenson, who had a gun. According to Edwards the appellant had a knife and it was the appellant who was active in robbing Edwards of his possessions. According to Edwards he struggled. Stephenson fired the gun and hit him in the hip. Then the appellant and Stephenson fled.[21]Precisely what happened inside that house on that day was far from clear even at the end of the trial, but it was clear, as a result of the verdict of the jury, that there had been a gun there, that the gun had been discharged, and on the findings of the jury that it had been discharged with intent to endanger life.[22]It was in that setting, and having regard to his previous convictions, that the learned judge sentenced as he did. When dealing with this appellant he said this:
"You, Thomas, were acquitted of attempted robbery and wounding with intent but convicted of the very serious crime of possessing a firearm with intent to endanger life. You have a very substantial criminal record of serious crime including previous convictions for robbery when in possession of an imitation firearm, thus I have to sentence you to life imprisonment. It seems to me you are just the type of offender for whom a life sentence is appropriate, determined as you appear to be to lead a life of serious crime endangering the lives of others. In the light of the jury's verdict, however, I would have passed a somewhat shorter sentence upon you were I passing a determinate sentence; that would have been ten years."
[23]Of course that indication from the trial judge is, so far as this Court is concerned, a useful starting point when deciding what, in the light of the decision made this morning, the sentence should now be. In the light of the decision made this morning it is obvious that the learned sentencing judge on this occasion was not required to pass a life sentence. So, on the face of it, the sentence would appear to be one of ten years.[24]However Mr Munyard, on behalf of the appellant, submits that such a sentence would not give proper weight to certain matters which we should now consider. First of all, he submits that the co-defendant, who actually discharged the firearm, received a sentence of 12 years' imprisonment and that the sentence indicated by the trial judge as appropriate in relation to this appellant was too close to that imposed in relation to one whose criminality was greater.[25]The difficulty about that argument is that if it had validity it could have been raised in relation to the sentence originally imposed and would have been relevant because the indication of the trial judge was relevant when he was certifying for the purposes of section 28 of the Crime (Sentences) Act what he considered the relevant period to be. Nevertheless, for present purposes we are prepared to look at what has been placed before us.[26]We do not regard the disparity argument as being of any significant weight in this case whatever. We do, however, regard there as being some weight to be attached to a second argument advanced by Mr Munyard, namely, that in sentencing as he did the sentencing judge had regard, and rightly had regard, to the previous record of this appellant as he knew it. In the light of our decision this morning that record would have been significantly less than it was at the time when sentence was imposed in June 2001, in that there would not have appeared as part of the record of this appellant his conviction on 22nd July 1994. That is something which we consider does have to be borne in mind in deciding at this stage whether a sentence of ten years' imprisonment is appropriate.[27]Mr Munyard advanced a further submission, namely that this Court should now give weight to the fact that, pursuant to the conviction in July 1994, the appellant did serve a period of three years and five months' imprisonment and that in the light of today's decision that was a period of imprisonment which he should not have served. Of course it is right to say that it is a period of imprisonment which he should not have served, but we do not accept that time served in custody in respect of an alleged offence which has not in the end resulted in a conviction, or in respect of which the conviction has had to be set aside, can be treated as a credit available for use against a proper sentence imposed subsequently in relation to some quite different criminality. Of course it forms, as Mr Munyard accepted when this matter was put to him, some part of the offender's general background, but there can be no year for year, or day for day credit given in respect of such a period of imprisonment. It would be wholly, in our judgment, wrong and illogical to grant it.[28]However, because of the matter to which we have referred, namely the effect of the offender's record at the time of sentencing in June 2001, and, for what it is worth, the background that he had, had the sentencing judge then known it, he had served a sentence of imprisonment which he in reality should not have served, we consider that it would not be right simply to implement the ten year sentence indicated by the sentencing judge. We reduce it to one of nine years. That will now be the sentence which will remain to be served in respect of the conviction at the Central Criminal Court on 18th June 2001.[29]I should say that we read the two letters placed before us and had regard to them.[30]MR MUNYARD: I have one further application and that is in relation to costs. I would ask this Court to make a defendant's costs order under the Prosecution of Offences Act 1985, those costs obviously to be assessed by the appropriate officer of the Court in the light of his successful appeal against conviction and the ancillary, but also, at least in part, successful appeal against sentence.

LORD JUSTICE KENNEDY: Is he publicly funded?

[32]MR MUNYARD: No, he is not.

LORD JUSTICE KENNEDY: Yes, you may have your order in the light of that indication.

[34]MR MUNYARD: I am very grateful.