Kempster, R. v [2003] EWCA Crim 3555

Case No 200106214B2[2003] EWCA Crim 3555
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT SOUTHAMPTON
MR RECORDER HUGHES QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date: 11 th DECEMBER 2003
Before
LORD JUSTICE MANTELLMR JUSTICE JACKSONTHE RECORDER OF MANCHESTER
Between
REGINACrownMARK JOHN KEMPSTERDefendant
Mr P O’Connor QC (instructed by the Registrar) for AppellantMr G Bebb QC (instructed by the CPS) for CrownHearing Hearing dates: 12 th November 2003
JUDGMENT
[1]In March, 2001 Mark John Kempster stood trial at Southampton Crown Court on an indictment containing five counts. During the trial he was acquitted of Count 3 on the direction of the learned Recorder. Then for convenience Counts 4 and 5 were re-numbered 3 and 4.[2]Count 1 alleged a burglary at 119, Satchell Lane, Netley, Hampshire during the night of 3rd to 4th June, 2000. Counts 2 to 4 alleged an attempted burglary and two burglaries in Bursledon, Hampshire respectively at 5, Beverley Gardens, "Landfall" in Portsmouth Road and 69, Pound Road, all during the night of 16th to 17th June, 2000. On 30th March, 2001 the appellant was convicted unanimously of Count 1, and by a majority of ten to two on Counts 2 to 4. He was subsequently sentenced to ten years imprisonment on Counts 1, 3 and 4 and to five years on Count 2. The sentences were ordered to run concurrently.[3]He applied for leave to appeal against his convictions and sentences. The single judge refused him leave to appeal against the convictions, but granted leave to appeal against the sentences. He renewed his application for leave to appeal against conviction to the full court which, on 21st July, 2003 was granted but confined to specific grounds. The first ground relates only to Count 1. The second applies equally to all four counts. It involves two related submissions. We will refer to these as grounds 2A and 2B. We will return to all of the grounds in due course.[4]The offences can be described very shortly. The burglary charged in Count 1 was committed close to midnight on 3rd to 4th June, 2000. A man broke into 119, Satchell Lane, the home of Mrs. Ivy Hooker, aged 89. She was deaf and had poor eyesight. The burglar gained access by forcing a rear kitchen window. Having made an untidy search of the premises, he went into Mrs. Hooker’s bedroom and woke her up in doing so. The man’s head was hooded. Mrs Hooker pressed her lifeline alarm, but the man snatched it from her. He said that he would not hurt her if she told him where the money was. He took £45 from her handbag. It was the Crown’s case that the burglar was the appellant, and that he left an identifiable ear-print at the scene.[5]The other three offences were committed within about four hours of each other in the early hours of 17th June, 2000. Three bungalows, all occupied by elderly people, and all in the same area of Bursledon, were burgled. The first, charged in Count 2, was at the house of a Mr. and Mrs. Haywood. Mr. Haywood disturbed the burglar as he was climbing through the rear kitchen window which he had forced. The second, charged in Count 3, was at the house of Mrs. Stella Douglas, an 89-year-old widow with failing faculties who awoke to find the burglar in her room. By the time he left the premises the burglar had carried out a search and stolen jewellery to the value of £850. The third, charged in Count 4, was at the house of a Mr. and Mrs. Martin. The burglar did not wake them from their sleep. Bankcards and cash were stolen. At 4 a.m. a person pretending to be a police officer telephoned Mr. and Mrs. Martin and sought, unsuccessfully, to persuade them to give him their PIN numbers. The Crown adduced evidence to prove that that person was the appellant, and contended that the proximity of the three burglaries in time and place and similarities in the way they were committed pointed to the conclusion that the same person had committed all of them.[6]Before considering the first ground of appeal it is necessary to look in some detail the evidence connecting the appellant with the burglary charged in Count 1. The police were alerted at 00.16 on 4th June. They attended 119 Satchell Lane and found an ear-print on a fixed windowpane to the side of the one that had been forced. A professed expert witness, Miss Cheryl McGowan, whose evidence we will consider in due course, later compared that ear-print with an ear impression provided by the appellant, and concluded that both had come from the same person.[7]It was not disputed that earlier in 2000, the appellant had been at 119, Satchell Lane carrying out building work. At the trial the Prosecution exhibited a receipt signed by the appellant and given to Mrs. Hooker. It was dated 12th February, 2000 and referred to "filling, tiling, new fascia board". There was also evidence from a neighbour, Mr. Brown, who had witnessed a disagreement between the appellant and Mrs. Hooker over the work done and the money to be paid, which culminated in Mrs. Hooker’s asking the appellant to leave.[8]Miss McGowan gave evidence that although an ear-print could remain on a window for many months in the absence of rain or cleaning, it was highly unlikely that such a print would remain on a window that had been cleaned properly. Accordingly, evidence was called from a window-cleaner, Mr. Crouch, who said that his team would clean the windows at 119, Satchell Lane on a monthly basis, on or about the 21st of each month. He could not say for certain that the window on which the ear-print was found had been cleaned in the period between 12th February and the discovery of the ear-print, but to the best of his knowledge he had not missed a month at the property. He certainly could not have missed two or three months. He hoped that the window concerned would have been cleaned during the relevant period, and he had received no complaints in relation to the property.[9]The appellant was interviewed on 19th June, 2000. He denied that he had committed the offence. Indeed, he denied that he had ever been to the back of 119, Satchell Lane. He said that he could not remember where he had been on the evening of 3rd June, but would probably have been at home. He provided an impression of his ears.[10]He was interviewed again on 5th July, 2000. By now, the police had a report in witness statement form dated 26th June, 2000 from Cheryl McGowan, to whom we have already referred. She was later to give evidence at the appellant’s trial. The effect of her report and her evidence can conveniently be dealt with together. She had been a specialist fingerprint officer for some 15 years, and had been involved in examining ear impressions since January, 1996, having thereafter handled about 25 such cases a year. In 1999, she had been on a two-week course in Holland run by the European Association of Police Colleges. The course had been directed by Mr. C. Van Der Lugt. In her report and her evidence she expressed the opinion that no two ears are the same. She had compared various features of the ear-print left at the scene and the impression taken from the appellant’s right ear, and had found similarities leading her to the conclusion that the print at the scene had been made by the same person who had provided the impression (that is, the appellant). When she gave evidence, counsel then acting for the appellant concluded his cross-examination of her by saying:
"I am not suggesting to you that this is not the defendant’s ear. All I am suggesting to you is the possibility that it is someone else’s; someone close to him such as a cousin’s."
Miss McGowan replied:
"No, in my opinion, I don’t believe it could have been made by anybody else."
[11]Miss McGowan’s was the only expert evidence which the jury heard. We have been informed that the appellant’s solicitors had instructed Mr. Michael Armer, to prepare a report relating to the ear-print. Mr. Armer, like Miss McGowan, was a fingerprint expert who also had experience in relation to ear-prints. We have seen his report dated 9th March, 2001. He agreed with the conclusions of Miss McGowan. He said that "… the combination of exact size and shape of the ear-print and … four distinctive features present, all of which are replicated in one or more of the control samples of Mr. Kempster’s ear-print, lead me to the conclusion that they offer extremely strong support for the view that Mark John Kempster was responsible for the ear-print found on the kitchen window at 119, Satchell Lane, Hamble." Not surprisingly, Mr. Armer was not called as a defence witness at the trial.[12]To return to the chronology, Miss McGowan’s report was disclosed to the appellant’s solicitor before the interview of 5th July, 2000 took place. During that interview, the appellant maintained his denial of the offence. He added:
"I’m not saying that it is my ear-print 100 per cent."
However, he went on to claim that if it was his ear-print, there was a legitimate reason for its presence, because he had done some pointing, tiling and fascia boarding at the property some four of five weeks previously (which would have been in or about early June). He said that he had given "her" (a reference to Mrs. Hooker) a receipt. The work which the appellant mentioned closely corresponded with that recorded in the receipt dated 12th February, 2000 to which we have referred. A little later in the interview he said that although he was not saying that it was his ear-print it, "could quite easily be my ear-print," and that it could have been left when he was holding the bottom of a ladder.[13]In giving evidence, the appellant repeated his denial that he had committed the offence. He said that he had, in fact, been to the premises twice before the date of the offence, the first time on 12th February, when he had given Mrs. Hooker the receipt, and again to do some more work in or about early June. He claimed to have made this clear to the police when interviewed on 5th July, 2000 but, as we have already observed, he did not in fact do so. He accepted that he had denied ever going to 119, Satchell Lane when interviewed on 19th June, 2000 and said that at the time he had forgotten having done so. He maintained the stance he had adopted during his interviews, namely that if it was his ear-print on the window, it was there for a legitimate reason. In cross-examination, he accepted that it was his ear-print. He said that it could have got there when he was leaning on the window while holding a ladder, or filling a tap. It could also have got there from listening to see if Mrs. Hooker was in the property. He accepted that he had not previously advanced this last explanation.[14]In evidence, the appellant also gave a detailed account of his whereabouts from about 7 p.m. on the evening of 3rd June, 2000 until about midnight. Briefly, he said that he and his wife Debbie went out drinking with his sister Sarah and brother-in-law Kevin while his mother baby-sat for his daughter. At about 11.30 p.m., the company returned to his house, to discover that his sister, Kelly was now there, and that his mare had given birth to a foal. Having checked that all was well with the mare and the foal his mother, sister and brother-in-law left at about midnight, and he and his wife remained at home for the rest of the night. He called his wife, mother and brother-in-law as witnesses, and the statement of his sister Kelly was read to the jury. They all gave evidence to the same effect as the appellant himself.[15]We now turn to the first ground of appeal. This relates to the ear-print evidence, and relies on the decision of this Court on 25th July, 2002 (sometime after the convictions in the present case) to allow the appeal against conviction of Mark Anthony Dallagher. R v. Dallagher [2003] 1 Crim.App.R 195 does have some features similar to those in the present case.[16]In Dallagher, the allegation was that the appellant had forced open a transom window in the home of an old woman, climbed in and murdered her. Ear-prints had been found on a window immediately below that which had been forced. Two experts, Mr. Van Der Lugt, to whom we have already referred, and Professor Vanezis gave evidence that the prints matched control impressions provided by the appellant. Mr. Van Der Lugt said that he was, "sure these ear-prints were made by this defendant." Professor Vanezis considered that conclusion to be "highly likely." The jury in Dallagher also heard evidence that the defendant lived near to the premises at which the murder was committed, that he had committed other burglaries where he had entered by a transom window, and that he had subsequently disclosed to a police informant information about the killing which was not in the public domain. He was convicted.[17]It then emerged that some scientists doubted the extent in the current state of knowledge, to which ear-print evidence alone could, safely be used to identify a suspect. The Defence obtained reports from three experts, Professor Moenssens, Dr. Christophe Champod, and Professor Van Koppen who shared that view. Having considered the provisions of section 23 of the Criminal Appeal Act 1968 the Court received fresh evidence from all three, though the Defence placed the most reliance on the evidence of Dr. Champod.[18]In giving the judgment of the Court Kennedy LJ. summarised Dr. Champod’s conclusions as being that "… at the present time ear-print comparison can help to narrow the field, and may eliminate, but cannot alone be regarded as a safe basis on which to identify a particular individual as being the person who left one or more prints at the scene of a crime." The evidence of Professors Van Koppen and Moenssens was to similar effect, save that the former was critical of the assumption that, in relation to ears, nature does not repeat itself. The Crown then called the two witnesses on whom they had relied at the trial. Though accepting many of the points made by the witnesses called on behalf of the appellant, and accepting that more research work was desirable in this field, Mr. Van Der Lugt and Professor Vanezis maintained the conclusions they had expressed at the trial.[19]The Court of Appeal concluded that the expert evidence of Mr. Van Der Lugt and Professor Vanezis had properly been admitted at the trial, and that those witnesses had been entitled to express their opinions in the way that they did; but, "even so it seems to us that the fresh evidence, if given at the trial, might reasonably have affected the approach of the trial jury to the crucial identification evidence of the experts and thus have affected the decision of the jury to convict … It follows that the fresh evidence does afford a ground for allowing the appeal … and having received it we must find the conviction to be unsafe."[20]Before us, it was submitted that the evidence of Miss McGowan compared unfavourably in a number of respects with the evidence of ear-print comparison adduced in the case of Dallagher. We do not consider that this is an arguable ground of appeal. We have to consider whether the conviction of the appellant whose case we are considering is safe, having regard to the evidence that was given and to certain procedural decisions made in his trial. In any event, for reasons which we will explain later, we consider that there are a number of features which distinguish the appellant’s case from that of Dallagher.[21]Next, in reliance on Dallagher, the appellant sought to adduce fresh evidence from Dr. Champod (now Professor Champod) with a view to submitting either that Miss McGowan’s evidence was inadmissible in principle because the scientific basis for her opinions did not exist; or that had Professor Champod’s evidence been adduced at the appellant’s trial, it might reasonably have undermined Miss McGowan’s evidence to such an extent that the jury may have acquitted the appellant.[22]In relation to Professor Champod the proceedings before us took a course similar in some respects to those before the Court in Dallagher. We, too, considered the provisions of section 23 of the Criminal Appeal Act 1968. We, too, decided to receive Professor Champod’s evidence. We, too, allowed the Crown to call further evidence in reply, in the present case from Miss McGowan.[23]Professor Champod provided us with a curriculum vitae which showed impressive qualifications and experience in forensic science, particularly in relation to identification methods. It is not necessary to cite them all, but it is right to record that since June, 2003 he has been a full Professor of Forensic Science at the University of Lausanne, having previously been employed as a senior forensic scientist by the Forensic Science Service, and has from time to time lectured for the Judicial Studies Board. He has edited and contributed towards many learned publications. One of them, "Ear marks as Evidence: A Critical Review," published in the Journal of Forensic Sciences in 2001, was placed before us. We also had the benefit of a report which he had written on 4th April, 2003 relating to the appellant’s case, and of his oral evidence. We were impressed by the helpful and moderate way in which he gave that evidence.[24]It emerged that Professor Champod had not himself compared the original ear-print found at the scene with the ear impression provided by the appellant. He had worked on the basis that certain features of the print and the impression did indeed correspond; and he accepted in cross-examination that there existed sufficient expertise to enable a witness properly to say that a print and an impression matched. His evidence, as in the case of Dallagher, was directed towards the value and evidential status of the comparative exercise. Indeed, his evidence overall was very similar to that which he gave in the case of Dallagher. He accepted that every ear has a unique shape, and that it was possible to discern differences between ears. However, he observed that ears could be subject to pressure and distortion when applied to a surface such as a window. Moreover, ear-prints, though providing an impression of external anatomical features, and possibly of such features as a scar or an earring mark, did not provide such detailed impressions as the skin ridges of a fingerprint.[25]He also referred to and relied upon the narrow database and paucity of research currently available to those engaging in a comparative exercise, in this infant and developing area of science. Further research, he said, was being undertaken to improve this situation, such as the "FEARID" project, the aims of which were explained in detail in a document which he also provided. He considered that ear-print comparison was a valuable investigative tool in the hands of the police, and could properly be used to exclude a person as a suspect. However, his view was that, in the current state of knowledge, expert evidence of positive comparison should not be given at all. He had, of course, expressed the same opinion in Dallagher. This Court rejected that opinion in Dallagher as do we, for the reasons explained in that case. Dr. Champod advanced the alternative proposition that if evidence of a positive comparison were to be adduced, it should be confined to an expression of opinion that a questioned ear-print was consistent with a known impression. Thus Miss McGowan should not have expressed herself in the manner to which we have referred. Again, this Court rejected that proposition in Dallagher, as do we for the same reasons.[26]When Miss McGowan gave evidence to us she accepted that the only test that she had ever taken in relation to ear-print comparison was at the end of the course in 1999 to which we have also referred and that she had not had any material published. She also accepted that ear-print comparison was still in its infancy compared with other areas of science. However, she stood by the conclusions she had expressed in her written report and in her evidence at the trial. She added that, after writing her report, she had checked her findings against a national database of ear-prints held in Durham.[27]Having received the fresh evidence, we must apply the familiar test established by the House of Lords in Pendleton [2002] 1 W.L.R. 72 and consider whether, if Professor Champod’s evidence had been given at the appellant’s trial, it might reasonably have affected the decision of the jury to convict. We have come to the conclusion that there are significant differences between the appellant’s case and the case of Dallagher, and that in the instant case Professor Champod’s evidence would not have affected the outcome of the trial. We reach that conclusion for the following reasons.[28](1) Had Professor Champod given evidence at the appellant’s trial, Miss McGowan would still have given her evidence and expressed her opinions in exactly the same robust terms as she in fact did. Nothing in the decision of this Court in Dallagher would have prevented her from doing so.(2) Dr. Champod would not have been able to tell the jury of the results of any comparison that he had made. He would have had to accept that there were corresponding features between the ear-print found on the window and the ear impression provided by the appellant. He would not have been able to point to any differences. He would have accepted that Miss McGowan was entitled to say at least that there was a match. There would still have been no direct challenge to the findings of Miss McGowan, though we accept that Dr. Champod would have been able to give evidence in general terms about the significance of such findings.(3) In Dallagher, the defendant denied that the ear-print on the window was his, and, as we understand the report of the judgment of the Court, denied that he had ever previously been to the premises concerned. In the instant case, the appellant accepted that he had previously been to the relevant premises, and never denied that the ear-print was his. That much is clear from the cross-examination of Miss McGowan on his behalf, his interviews with the police and his evidence at the trial to which we have referred. Indeed, at one point of his evidence he positively accepted that the ear-print was his. In any event, the thrust of his case was that if his ear-print had been found on the window, there were innocent explanations for its presence.(4) Whereas we accept that both in Dallagher and in the appellant’s case the jury could not have convicted unless they were sure that the ear-print on the window was that of the defendant concerned, in our judgment there was significantly more supporting evidence against the appellant than against Dallagher. To begin with, the appellant knew the premises concerned and of the age and infirmity of the occupier. There was evidence from which the jury could conclude that the windows of 119, Satchell Lane had been cleaned only some two weeks or so before the burglary; and that, given the argument the appellant had had with Mrs. Hooker over money matters in February, 2000 he would not have returned to the premises to do more work at a later stage. There was also evidence from which the jury were entitled to conclude that the appellant had lied when interviewed on 19th June, 2000 in saying that he had never been to the premises; had lied again, to provide an explanation for the ear-print of which he was then aware, when saying in his interview of 5th July, 2000 that he had been to the premises, but at or about the beginning of June, 2000; had lied yet again in evidence when being aware that the police had the receipt of 12th February, 2000 to which we have referred, by saying that he had been to the premises both in February and in June, 2000; and had lied once more when presenting in evidence a detailed alibi, having said when interviewed on 19th June, 2000, some two weeks after the offence, that he did not know where he had been at the relevant time, though he had probably been at home.[29]We therefore reject the first ground of appeal. On behalf of the appellant, Mr. O’Connor Q.C. submitted that should the conviction on Count 1 be quashed on the ground which we have considered there would be a "knock-on" effect on the other convictions. This would be for two reasons. The first would result from directions given by the learned Recorder to the jury which, it was submitted, may have given the jury the incorrect impression that the evidence on Count 1 could be taken into account when considering Counts 2, 3 and 4. The second would arise because, having accepted Miss McGowan’s evidence on Count 1, the jury must have rejected that of the appellant and his alibi witnesses, with damaging consequences in relation to Counts 2, 3 and 4. In the light of our rejection of the first ground of appeal, it is unnecessary for us to consider these supplementary submissions.[30]We therefore turn to the second ground of appeal, which applies to all four counts. We have already set out in some detail the evidence against the appellant on Count 1. In relation to Counts 2 to 4, it is not necessary to add to the brief summary given in paragraph 5 above, since the second ground of appeal relates not to the evidence but to events that occurred during the trial. For reasons that will become apparent, however, we do refer briefly to a witness called by the Prosecution, one Robert Smith. This witness unexpectedly, dramatically and unconvincingly gave evidence that it was he who had committed all of the offences with which the appellant was charged. The jury clearly did not believe him.[31]During the morning of 28th March, 2001 – the sixth day of the trial – the learned Recorder heard and rejected a submission made at the end of the Prosecution’s case that there was insufficient evidence against the appellant to go to the jury. The Recorder then heard and rejected an application made on the appellant’s behalf that the jury be discharged because of what was said to be the prejudicial effect of the evidence of Robert Smith. The Court adjourned for lunch. When the Court re-convened, Mr. Jenkins, counsel for the appellant, announced that the appellant had dispensed with his services and those of his instructing solicitors. Mr. Jenkins added that he was not professionally embarrassed, that the appellant had not criticised him in any way and that there had been no acrimony. The appellant had simply decided that he needed fresh counsel and solicitors to consider "certain factors." When the learned Recorder expressed the view that, "the inevitable consequence of asking for fresh counsel and solicitors would be to abort this trial and order a new one," Mr. Jenkins agreed, "unless it were to be adjourned for a period of time for that counsel to have a transcript or to look at our notes and then to request whether any evidence is re-called for further cross-examination." Mr. Jenkins later asked the Recorder to consider the possibility of allowing the appellant new solicitors and counsel, and to give them a day to settle into the case. The Recorder asked the appellant if he was prepared to say why he had dispensed with his lawyers’ services. The appellant said that it was because of a "conflict of interests." Asked if he was prepared to elaborate, the appellant declined to do so.[32]The Recorder expressed the view that this was a device on the appellant’s part to secure a re-trial. He told the appellant that he would have to re-instate Mr. Jenkins and his instructing solicitors or represent himself. The Recorder commented that this was different from a situation in which counsel sought to withdraw because of professional embarrassment arising out of a change of instructions. He adjourned to allow the appellant time to consider his position. When the Court re-convened, Mr. Jenkins said that the appellant "has asked me whether I would represent him and I have told him that I will, but he is also considering other options as well." The Recorder then adjourned until the next morning, to allow the appellant more time.[33]The next morning Mr. Jenkins announced that he and his solicitors were now professionally embarrassed, and withdrew. The Recorder asked the appellant whether he was making another request for the trial to be abandoned and to have new solicitors and counsel. The appellant said that he was, because he could not read or write and did not know the law. The Recorder then said:
"I am quite satisfied that this is an attempt by you to put off the evil day and I am not prepared to accede to it. I will give you what proper assistance I can but the trial will continue."
The appellant replied: "Fair enough." When the jury returned to court the Recorder simply said: "Members of the jury, you will notice that Mr. Jenkins and his instructing solicitors are no longer present in court. Mr. Kempster is representing himself." For the sake of completeness, we add that similar applications for fresh representation were made by the appellant at later stages of the proceedings and were dealt with by the Recorder in a similar way.[34]Ground of appeal 2A is, in effect, that what happened was not ‘fair enough’ at all. The appellant should have been allowed fresh counsel and solicitors. The course followed by the Recorder contravened the provisions of Article 6 of the European Convention on Human Rights.[35]The law governing such a situation is helpfully summarised at paragraph 4-41 of the 2003 Edition of Archbold. The judge has a discretion whether or not to grant an adjournment so as to permit fresh counsel to be instructed. The discretion has to be exercised with regard to the interests of justice in the particular case. The interests of the defendant, but also those of the prosecution, the witnesses and the public have to be taken into account. We have had regard to these principles, and to the provisions of Article 6.[36]In our judgment, the approach of the learned Recorder cannot be faulted. He was perfectly entitled to conclude that the appellant, thinking that the trial was not going well for him, was seeking to obtain a re-trial on a pre-text. In coming to that conclusion the Recorder was justified in taking into account that counsel and solicitors were dismissed immediately after a submission of "no case" and then an application to discharge the jury had been refused; that at first counsel and solicitors were not professionally embarrassed; and that it was after the Recorder himself drew attention to that fact that counsel and solicitors then had to announce that they had become professionally embarrassed. Moreover, whilst fully recognising the principles of legal professional privilege we note that the only explanations offered to the Recorder for what had happened was the need for fresh counsel and solicitors to consider "certain factors" and the appellant’s reference to a "conflict of interest" which he declined to explain further.[37]Having concluded that the appellant was trying to manipulate the proceedings, the Recorder was also right in our judgment not to accede to the application for fresh solicitors and counsel. He bore in mind, as he was entitled to do, that the appellant was not lacking in experience of the criminal courts, and had shown an impressive grasp of the evidence during the trial. He formed the view that the introduction of fresh counsel and solicitors would inevitably lead to the discharge of the jury and a re-trial. In our judgment this too was a proper conclusion. We are aware that fresh counsel and solicitors have occasionally been brought into part-heard trials, but this is rarely a satisfactory procedure. Moreover, the Recorder was dealing with applications made on the sixth day of a trial, after all the prosecution evidence had been heard and tested, and in a case of some gravity and complexity.[38]Finally, we consider that the Recorder, having decided not to allow fresh legal representation, dealt fairly and properly with the difficult situation that faced him. He gave the appellant an opportunity to consider his position and re-instate Mr. Jenkins and his instructing solicitors if the appellant wished to do so. He informed the jury of the departure of Mr. Jenkins and his instructing solicitors in succinct and neutral terms. He then helped the appellant with his evidence in chief. He went so far as to supply the appellant with a copy of his notes of evidence to assist the appellant in his closing speech. We reject ground of appeal 2A.[39]The Recorder faced another difficult situation towards the end of the trial. This gives rise to ground of appeal 2B. Before all the defence evidence had been called, the appellant asked if his wife could help him with the preparation of his closing speech. The Recorder agreed that she could do so, after she had given her evidence. After the evidence was completed, the appellant went a stage further. He asked if his wife could read out parts of the evidence during his closing speech, in light of his difficulty in reading and writing. Again, the Recorder agreed. The Recorder then acceded to repeated requests from the appellant for further time to prepare his speech, and said that he would allow Mrs. Kempster to sit with the appellant in the dock. Then, the appellant went yet a stage further. In the presence of the jury, he asked whether his wife could read out the entire speech, subject to his adding a couple of further points after she had done so. He said:
"It’s coming from me. I’ve told her what to write."
Again, the Recorder agreed and that is what happened.[40]Mr. O’Connor now submits that the course adopted was unusual, unsatisfactory and unfair. Much of the closing speech was delivered by an alibi witness, Mrs. Kempster, whose evidence the jury ultimately rejected. This all stemmed from the original decision of the Recorder not to allow the appellant fresh counsel and solicitors.[41]We agree that the course followed was highly unusual, but in our judgment it had no bearing on the fairness of the trial or the safety of any of the convictions. It was done specifically at the request of the appellant. The final request, that Mrs. Kempster be allowed to read most of the closing speech, was made without warning in the presence of the jury. The Recorder could hardly then have refused it, even if he would otherwise have been inclined to do so. Before Mrs. Kempster began, it was made clear to the jury that she was merely reading the appellant’s words. Thus Mrs. Kempster’s credibility or otherwise as a witness was not in issue at this stage of the trial. Having studied the relevant transcripts of the proceedings, we have formed the impression that the learned Recorder was doing his utmost to be fair to the appellant in these unusual, unexpected and difficult circumstances. We therefore reject ground of appeal 2B.[42]We turn finally to the appeal against sentence. The appellant is now 38 years of age. He is married with two children. He had made seven previous court appearances, principally for offences of dishonesty, though he had not previously been convicted of an offence of burglary. In 1984, for eleven offences of tendering counterfeit currency, obtaining property by deception and attempting to obtain property by deception, with 37 offences taken into consideration, concurrent community service orders of 100 hours were made. The offences of deception involved obtaining money from elderly people for unnecessary building work. On 14th April, 1994 he received concurrent sentences of seven years’ imprisonment for 22 offences of theft, obtaining property by deception and attempting to obtain property by deception. These arose from his targeting elderly and vulnerable victims, and demanding exorbitant sums of money for building and tarmacking work that was grossly sub-standard or, in some cases, had not been done at all. In addition, he stole property from some of the homes of his victims. The learned Recorder had a pre-sentence report which referred to the appellant’s addiction to heroin and crack-cocaine, and assessed him as presenting a high risk of further offending.[43]In our judgment, the offences for which the appellant was to be sentenced were particularly serious examples of burglary. Once again the appellant was targeting elderly and vulnerable victims. All of the offences were committed at night. In each case the householders were at home. In three cases he disturbed them by what he was doing. Two 89-year-old women awoke to find him in their bedrooms.[44]As might be expected, the victims were gravely affected by these offences. Mrs. Hooker was really shaken by her experience and became more nervous about being on her own, and fearful if she heard any noise during the night. Mr. Haywood had been recovering from a major heart operation when the appellant attempted to burgle his home. He too suffered stress and anxiety, fearing a further similar offence. Mrs. Douglas was also left in a state of shock and fear. Amongst the jewellery the appellant stole from her was her engagement ring which she had had since the early 1930s, and a pearl necklace which was a gift from her late husband on their 50th wedding anniversary. She was so affected by the burglary that she had to leave her home and go and live with her daughter. Mrs. Martin was suffering from terminal cancer when the appellant burgled her home. She and her husband also became anxious that the same thing might happen again. Amongst the items the appellant stole was a diary in which Mrs. Martin had kept details of all her personal and social functions and arrangements. She was a meticulous woman, but had problems with her memory, and relied heavily on the diary, which was a source of comfort to her. She never got over its loss up to the time of her death.[45]We have had regard to the case of McInerny and Keating [2003] 1 Crim.App.R 36 to which we have been referred, but in our judgment that authority is not principally directed to offences of this number and nature, committed by a man with a criminal record such as the appellant’s. We agree with the Recorder’s description of the appellant as "a menace to elderly people in their own homes." We also agree that the sentences in this case had not only to reflect the gravity of the offending, but also to deter others inclined to commit similar offences. The appellant had shown no remorse. In our judgment, the sentences passed were towards the top of but within the bracket appropriate to such a case. The appeal against sentence is therefore dismissed.

Cited in 1 later judgment