Colman & Anor v R [2004] EWCA Crim 3252

[2004] EWCA Crim 3252Case No 0201387 D1 & 0201389 D1IN THE SUPREME COURT OF JUDICATURECOURT OF APPEAL (CRIMINAL APPEALS DIVISION)ON APPEAL FROM Winchester Crown CourtHis Honour Judge BroderickVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/12/2004
Before
LORD JUSTICE AULDMR JUSTICE OWENMR JUSTICE HEDLEY
Between
1) ROBERT LUKE COLMANAppellants2) WAYNE MICHAEL TERRYAppellantTHE QUEENRespondent
Mr Warwick Tatford for First AppellantMr Rupert Pardoe & Miss Fiona Horlick for Second AppellantMr David Bartlett for RespondentHearing Hearing dates : 12 th October 2004
Judgment
[1]On 8th February 2002 in the Crown Court at Winchester, before His Honour Judge Broderick and a jury, the appellants, Robert Colman and Wayne Terry, were respectively convicted on a fourteen count indictment on four and five counts of dishonesty involving burglary and theft of computer equipment, handling of such equipment and theft of high performance cars to assist in those offences. They were acquitted of the other nine counts, in the case of four of them, on the prosecution offering no evidence following a ruling of the judge not to admit certain expert testimony into evidence. The Judge sentenced each of them to a total of ten years imprisonment. There were three co-accused, one of whom Jay Shambrooke, was convicted of two of the counts in the indictment, and two of whom, Kenneth Pennells and Martin Comrie, were acquitted of the counts with which they were charged.[2]Terry appeals against conviction on one ground in respect of which he was given leave on a renewed application to the Full Court. Both Colman and Terry appeal against sentence with the leave of the Single Judge.[3]The central issue in the appeal is the dividing line in principle and on the facts of the case between the rule against double jeopardy and the admissibility and treatment of evidence, relevant to a charge of which an accused has been acquitted, on another charge to an issue in which such evidence is also relevant and otherwise admissible.[4]The prosecution case was that Terry was the prime mover of a gang of professional burglars of commercial premises, particularly computer warehouses, the gang consisting of Colman and the other three co-accused. Much of the prosecution evidence consisted of police observations, including tape-recorded conversations obtained by the installation of a listening device in a Fiat Punto car linked to Terry. There was also much evidence of telephone traffic between phones associated with the two men and their co-accused.

The Facts

[5]The Fiat Punto is at the centre of the story and of the appeal. Terry’s father, a garage proprietor, used it partly as a courtesy car for his customers, but also allowed Terry and other members of the family considerable use of it. With appropriate authority, the police, in early March 2000, covertly installed a listening device in the car and set up a listening post in a police station to enable them to listen to and record conversations in the car. In the course of the investigation the police learned that Terry on occasion referred to himself as “Ant”, a shortened form of the name, “Anthony Price”, a pseudonym that he used. They were also able to link him with a number of telephone numbers.[6]The general picture disclosed by the prosecution evidence on the five counts on which Colman and Terry were convicted was of an intensive period of criminality in the Spring of 2000, starting with an offence on the night of 7th/8th March, the subject of count 6, stealing an expensive Audi car. To achieve the theft, it had been necessary to force open and remove the steering lock and ignition barrel. Shortly afterwards, officers at the listening post heard and recorded conversations in the Fiat Punto in which a man, who they maintained was Terry, spoke of an Audi in a way that suggested he had stolen it, and also referred to its need for a new ignition barrel.[7]On about 13th March a man giving the name Anthony Price rented a lock-up garage known as Unit 9, Grange Farm near Reading, using a phone number associated with Terry. On the prosecution case, his purpose was to house and conceal the stolen Audi car for use for further offences. A few days later, a police officer posing as a customer, saw and heard a man calling himself Anthony Price, collect a replacement ignition barrel and key from an Audi dealer. Shortly after that, officers in the listening post, heard and recorded a conversation in the Fiat Punto referring to the collection and price of the new barrel.[8]One of the offences for which the stolen Audi was used was an unconsummated conspiracy on 13th and 14th March to burgle computer dealers, the subject of count 7 on which Colman and Terry were convicted. On 13th March officers at the listening post heard and recorded conversations in the Fiat Punto in which male occupants spoke of Taran Microsystems, at Taran near Basingstoke, as a potential target for burglary. The conversations included discussion as to the route from Unit 9 to Taran and back and as to the use of gas masks and an axe and a sledge hammer. The prosecution case was that one of the participants in this highly incriminating conversation was Terry, relying: 1) on the use the phone associated with him in the renting of Unit 9; 2) the conversation in the Fiat Punto about the need for a new ignition barrel for an Audi; 3) the subsequent purchase of gas masks by from a Halfords store and their discovery at Unit 9, one of them bearing Terry’s finger-prints; and 4) evidence of a voice analysis expert, Mrs Elizabeth McClelland, who expressed the opinion that Terry was one of the speakers.[9]On 14th March waiting police officers saw and photographed a man driving around in the Fiat Punto and, whilst in it, using a mobile telephone registering one of the numbers associated with Terry. At the same time officers at the listening post heard and recorded those telephone conversations, which included references to the Audi and chassis numbers, and about a visit to Taran the evening before. Mrs McClelland’s evidence was that it was “highly probable” that one of the speakers was Terry. He was later to accept that he was the man shown in the photographs, but maintained that they had been taken on a different day. This combination of police observation and use of the listening post revealed much telephone traffic between Terry, Colman, their co-accused Shambrooke and with others, and a good deal of movement about the place in the Fiat Punto and other vehicles throughout the day, seemingly in preparation for some venture that evening. Eventually, between about 7 p.m. and 8 p.m. the Fiat Punto and a red Audi came together and travelled in convoy to an industrial estate in Stevenage, where, apparently, there were two other computer companies that were potential targets for burglary. By this time, on the prosecution evidence, Terry, Colman and Shambrooke were among the occupants of one or other car; they talked to each other on mobile phones and walkie-talkies, but, in the event, drove away without attempting any burglary.[10]On 16th March there was, on the prosecution case, a more resolute re-run of the events of the previous few days, this time resulting in burglary of Taran Microsystems, the subject of count 8, of which Colman, Terry and Shambrooke were convicted. We need not go into great detail of the events of the day leading up to the burglary. It is enough to say that, by the same combination of observation, listening in to the conversations in the Fiat Punto and idenfication of mobile telephones linked to Terry, there was evidence of: Colman and Terry purchasing masks and goggles at Halfords and of them trying them on in the car; much activity at Unit 9 suggesting installation of the new ignition barrel and lock in the stolen Audi; in the evening, a convoy of the Audi and the Fiat Punto heading towards Taran, Terry and Colman in the Audi and Shambroke in the Fiat Punto; and, as they neared Taran there was conversation by walkie-talkie between the two vehicles. Just before 10 p.m. three men, not directly identified, broke into the premises of Taran Microsystems, but left after threatening an employee with a crow bar and tying him up, and unsuccessfully trying to force entry into the company’s warehouse. By the time the police closed in, about 20 minutes later, the men had made their escape. There were police sightings of the Audi and the Fiat Punto driving at speed away from the area and mobile telephone calls between the two vehicles as they did so. The story ends that day, without the arrest of anyone, and with much movement of vehicles at Unit 9, Grange Farm between 10 and 11 p.m.[11]There was then a gap of some three weeks until the burglary of and theft from another computer firm, Cosmic Technology, of computer parts valued at over £150,000, which led to a charge of handling stolen goods, count 8, of which both Colman and Terry were convicted. The police, who had been keeping a video surveillance on Unit 9, Grange Farm, saw there over the next few days Colman and Terry and movement of various cars, including the red Audi and a VW Golf, the latter driven by Terry. Subsequently, the police found in Unit 9 over £90,000 worth of the computer parts stolen from Cosmic Technology and, at Colman’s house, a related list of the parts, the list bearing his finger-prints. The police also found at Terry’s house the key to the padlock of Unit 9.[12]A further offence, of which both men were convicted, the subject of count 9, was the theft of a Subaru car on the night of 24th/25th April 2000 from a garage in Alton, Hampshire. On 26th April the police video-surveillance equipment at Unit 9 recorded the arrival there of the vehicle. There were two men in it, but the video-recording did not clearly identify them. However, when the police moved in and recovered the Subaru, they saw that it bore registration plates with a number that, earlier that year, on 20th March, two men had been heard and recorded discussing in the Fiat Punto. Mrs McClelland’s evidence was that one of them was Terry.[13]On 30th April 2000 the police, believing that Terry and Colman and their associates were about to commit another burglary, moved in on Unit 9 and found them and two of the their co-accused, Comrie and Pennells, there, also the Subaru. The behaviour of the four men immediately giving rise to the police raid was to form the subject of count 10, a charge of conspiracy to burgle on that date, a charge on which they were all acquitted. The police arrested all four men. On their search of Unit 9 and the car they found that the registration number was false, that the car contained computer equipment, a sledge hammer, a slide hammer, a 24” “Gorilla” bar and a roll of tape. There were finger-prints on the tape, one of which was Terry’s. They found on the roof of the car: gloves, a radio-scanner and a ski mask, and, hanging on the wall of the garage, two further masks. As we have already mentioned, they also found in Unit 9 some £90,000 worth of the computer parts stolen from Cosmic Technology, the subject of count 9. Searches of the Volkswagen Golf used by Terry and at his and Colman’s home revealed various classic items of burgling paraphernalia, in the form of masks and other clothing, and of radio equipment for scanning police frequencies.[14]Terry, when interviewed by the police on 1st May 2000, the day after his arrest, gave them the following account. He had rented Unit 9, but had sub-let it to a man called Paul Wright, and had not been to it for a couple of months. However, he accepted that he had a key to it, and that the Volkswagen Golf which the police had recently seen there was his. In a later interview, when the police told him that they had video-film evidence of his recent presence at Unit 9, he decided, on advice, to make no comment until after he had seen the film. The police then released him and his co-accused on bail, without, we should add, having informed them of the listening device they had installed in the Fiat Punto in early March, and which they were to leave there until mid August.[15]It was not until 15th August that the police re-arrested Terry and his co-accused. In a further interview, he and they remained silent. At trial none of them gave evidence and none of them called evidence save for Terry, who called Paul Balducci to demonstrate a mistake by Mrs McClelland in attributing to him, Balducci, one of the voices in the Fiat Punto car when he was in Ireland, evidence that the prosecution conceded.[16]Before turning to the submissions on the appeal, we should say a little more about the evidence of the voice recognition expert, Mrs McClelland. Before this Court, Mr Rupert Pardoe, on behalf of Terry, drawing on the way she had expressed herself in each of her witness statements, characterised her stance as making it a “pre-condition” of her opinion as to the identification of the voice of any defendant that there should be other evidence confirming his presence. The material passage in each of the statements read as follows:
“My conclusions on speaker identity in this case were formed on the basis that there was other evidence that Terry (and others) were in the environment in which the recordings took place and that the task was, in essence, that of verifying as far as possible which of them was speaking at a particular time”
[17]In the light of that stance, Mr. Pardoe, at an early stage of the trial, submitted successfully that, unless the prosecution could otherwise prove the presence of Terry in the car during the conversations in question in which she attributed statements to him, the Judge should rule her opinion evidence on those statements inadmissible. Four of the counts in the 14 count indictment related to alleged offences in respect of which his guilt depended entirely on her attribution to him of one of the voices recorded via the listening device. The Judge acceded to that submission, and thus it was that the prosecution felt bound to offer no evidence against him in respect of those matters, and, at the Judge’s direction, the jury entered verdicts of not guilty. In a later ruling in the course of the trial, when considering the effect of the acquittals and the consequential exclusion of the evidence relating to them, including that of Mrs McClelland, the Judge said:
“The precise terms in which the voice expert was instructed are not, at the moment clear. What is clear is that, perhaps for reasons of speed and/or economy, the voice expert was only asked to express an opinion on a number of extracts from the tapes, which dealt with what were, no doubt, considered to be particularly damning remarks. The response from the expert was to set a pre-condition to the expression of any opinion about the extracts from the tapes, namely that there should be some other evidence confirming the presence of one or more of the alleged Defendants.”
[18]As to the remaining counts, in respect of which there was evidence in addition to that of Mrs McClelland that Terry was in the Fiat Punto at the time of the recording of the incriminating statements, it was conceded on his behalf that the conversations, together with other evidence as to the circumstances of the burglaries, established that the speaker was one of those responsible for the commission of the offences. It was, however, disputed that Terry was the speaker.[19]Mrs McClelland, when she came to give her evidence to the jury, said that, having compared the tape of Terry’s answers to the police in interview with the taped conversations in the car, which were of lesser quality because of background noise, she was able to identify his voice to various levels of assurance. In relation to some of the conversations, she expressed the view that it was probable, that is, more likely than not, that he was one of the speakers. In others she put it higher than that, namely that it was highly probable that he was one of the speakers. In relation to her evidence in general, she warned that identification by speech analysis was not as conclusive as finger-print or DNA evidence and that it should only be used in conjunction with other evidence. She went further than that; she indicated that, regardless of her level of assurance in relation to any particular conversation, her evidence was predicated on the existence of other evidence confirming the presence of a defendant at the recorded conversation in question. This is how she put it in her evidence in chief and in cross-examination respectively:
“It is extremely important to realise that identification from voice analysis is in no way equivalent to fingerprinting. Identification evidence from speaker analysis should only be used in conjunction with other evidence.” “It is not the same as fingerprint evidence. Always look for other evidence than a voice expert. I re-emphasise that voice identification can only be used where there is other evidence.”
[20]In the course of her evidence, Mrs McClelland explained that that if it was established that the questioned voice was one of a defined group of persons, for example the known occupants of a prison cell or other controlled environment like a car, she could compare the questioned voice on the recording with the known voice samples of the persons from that group so as to determine which of them most closely matched the questioned voice.

The matter giving rise to the ground of appeal

[21]During the trial Mr Pardoe, in a submission to the Judge in the absence of the jury, sought to pray in aid the four acquittals in Terry’s defence to the remaining counts. He submitted, first, that they were conclusive evidence, binding for all purposes, that Terry was not guilty of any of the offences of which he had been acquitted. He submitted, secondly, that, in consequence, he was entitled to adduce evidence of the acquittals as conclusive proof that Terry had not been in the Fiat Punto at the time of the excluded conversations and, therefore, could not have been one of the speakers at the time of the recordings in question. He submitted, thirdly, that should he, Mr Pardoe, seek to have the excluded recordings played to the jury, the Judge should direct them to those effects.[22]There was, as the Judge observed, no difficulty about the first submission. As to the other two, Mr Pardoe’s rationale was that it was relevant for this jury to know of the acquittals and that such knowledge accompanied by the direction he sought would support the defence case that the Fiat Punto was not used largely or exclusively by Terry, and that other people, one or more of whom had been confused with Terry, had been speaking in the car at the time of the incriminating recordings. The Judge summarised his submission on those points in the following words:
“The failure of the Crown to prove that Terry was in the car at the material time must be elevated by the Not Guilty verdicts into positive, conclusive and irrebuttable proof that Terry was not in the car at the material time.”
[23]It seems that Mr Pardoe’s submission did not extend to the proposition that he could adduce evidence in cross-examination of Mrs McClelland of her opinion that it was Terry’s voice in the excluded recordings, that it was the same voice that she had heard on the remaining recordings and that, in the light of the acquittals to which the excluded recordings related, the voice she had identified as the same in the remaining recordings could not be that of Terry either. As the Judge observed in his ruling on the matter, that was no doubt because he sensed the obvious dangers in such a course.[24]Mr David Bartlett, for the prosecution, submitted that Terry was not entitled to adduce evidence of the acquittals because they were not relevant to the remaining counts and that the Judge need not, and should not, give the direction sought. He also argued that, if the jury were to hear the excluded recordings, the prosecution should be permitted to call evidence in rebuttal that Terry was in fact one of the speakers in them.[25]The Judge, after consideration of a number of authorities, including: R v Ollis [1900] 2 QB 76; Sambasivam v Pubic Prosecutor, Federation of Malaya [1950] AC 458, PC; R v Hay (1983) 77 Cr App R 70; and R v Z [2000] 2 AC 483, HL, ruled that Terry would be entitled to put the acquittals before the jury as tending to support his contentions that the Fiat Punto was used by others at the time of any of the incriminating conversations and that it was one of them, not he, speaking in the excluded recordings. However, he held that Terry was not entitled to the direction sought, namely that the acquittals were conclusive proof that he was not in the car and not speaking at the time of the excluded recordings. He also ruled in favour of Mr Bartlett’s submission that if Terry sought to rely on the excluded recordings and acquittals for the purpose of suggesting that he was not one of the speakers in any of the remaining, admissible recordings, the prosecution would be entitled to call evidence in rebuttal on such issues. The jury were duly informed of the acquittals by way of an anodyne prosecution admission, and the Judge, in his summing-up, directed them that:
“a not guilty verdict is conclusive of the innocence of that particular defendant on that particular charge, but of course is has no further significance, it does not have any impact on the remaining charges which it is your duty to try.”
[26]In the event, and, no doubt, mindful of the Judge’s third ruling, Mr Pardoe did not suggest to the jury that they could rely on the acquittals as proof or as supportive of Terry’s case that he was not one of the speakers in any of the remaining, admissible, recordings. And, in consequence, Mr Bartlett had no occasion to take advantage of that ruling to call evidence from Mrs McClelland or anyone else that Terry was one of the speakers in the excluded recordings and of his incriminating statements in them. He acknowledged to this Court, if the occasion for such evidence had arisen, his only option would have been to invite the jury to listen to the excluded recordings and then seek the Judge’s permission re-call Mrs McClelland to ask her to give her opinion as to who was speaking in each of them. As he emphasised, if he had done so, it would not have been to undermine the acquittals, but simply to rebut an improper interpretation by the defence of their effect on the remaining charges. Submissions Mrs McClelland’s “pre-condition”

Submissions

[27]Mr Pardoe advanced much the same arguments in support of the appeal as he did in his third submission to the Judge based on Mrs McClelland’s “pre-condition”. He pointed to her opening words in each of her witness statements that her conclusions on speaker identity were formed on the basis of, or subject to her “pre-condition” that there had to be other evidence of Terry’s presence in the car, which, he said, affected the entirety of her evidence. He accepted, as he had done before the Judge, that non-fulfilment of that “pre-condition” would not have entitled him to suggest to the jury that she was positively of the opinion that the disputed voice in the excluded recordings was that of someone other than Terry. His point was that, for want of fulfilment of the “pre-condition”, her opinion on a varying balance of probability that Terry was one of the speakers, was no opinion at all. The implication of such submission was that there was no evidence to salvage from the acquittal of Terry’s involvement on those matters to which the prosecution could have had recourse as rebuttal evidence if he, Mr Pardoe had sought to rely on the acquittals to undermine her evidence on the remaining counts.[28]Mr Bartlett, on the other hand, submitted that it was wrong of Mr Pardoe to suggest, in those instances where Mrs McClelland’s “pre-condition” was not met, that she had no opinion that it was Terry’s voice or that her opinion was it was someone else’s voice. He maintained that the correct analysis was that she did have an opinion that it was Terry’s voice, but that, without other evidence of his presence satisfying her “pre-condition”, the prosecution was not entitled to rely upon it as part of its case in relation to the remaining charges on which there was such other evidence.[29]The Judge and Mr Pardoe may have been correct to refer to Mrs Clelland’s qualification as to the value of her voice identification evidence in the absence of other evidence as to the presence of the speaker to whom she attributed the recorded voice, as her “pre-condition”. But it was not as a matter of law a pre-condition of the admissibility of the evidence; it was a qualification that went to its weight and to the fairness of admitting it in the circumstances, a matter for the Judge’s evaluation. Thus, it did not follow as a matter of law, any more than as a matter of logic, that once her “pre-condition” or the basis on which she expressed it was removed, it was no opinion at all or had no evidential weight. But that consequence is not determinative of this appeal. The effect of an acquittal on one charge on the admissibility of evidence going to it on another charge[30]Mr Pardoe’s primary submission was that an acquittal is a declaration of positive innocence, and that that does not depend upon how it came about. He relied, as he had done before the Judge, principally upon Sambasivam and Hay. In Sambasivam, the appellant challenged his conviction before a judge and two assessors of unlawful possession of a .38 revolver where the prosecution had adduced evidence of possession on the same occasion of unlawful possession by him of .38 ammunition in respect of which he had been acquitted at a previous trial and of which acquittal the assessors in the subsequent trial were not informed. The Judicial Committee of the Privy Council, allowing the appeal, held that the prosecution was not entitled to challenge the validity of the acquittal in that way and that the appellant was entitled to rely on it in so far as it might be relevant to his defence. Lord MacDermott, giving the judgment of the Board, stated, at page 479:
“The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.”
[31]In Hay the appellant had made a single written confession statement to two unconnected charges, one of arson, the other of burglary. The indictment was severed, and on the first trial on the arson charge, the statement was put before the jury in edited form, so as to omit the references to burglary. His defence was that the police had fabricated the statement, and he also called evidence of alibi. The jury acquitted. On the trial for burglary, which followed, he sought to put the whole of the confession statement before the jury in order to challenge the part relating to the burglary charge and to support the challenge by reliance on his acquittal on the arson charge and by adducing evidence of his alibi in relation to that charge in order to show that the previous jury had not been satisfied of the truthfulness of the confession statement. The Judge refused to allow the jury to be informed of the acquittal or to allow him to adduce the alibi evidence, ruling that both were irrelevant to the charge of burglary. This Court, having considered the passage above from Lord MacDermott’s judgment in Sambasivam, allowed his appeal against conviction. O’Connor LJ, giving the judgment of the Court, said at page 75:
“The jury ought to have been told of the acquittal and directed that it was conclusive evidence that the appellant was not guilty of arson, and that his confession to that offence was untrue. The jury should have been directed that in deciding the contest between the appellant and the police officers as to the part of the statement referring to the burglary, they should keep in mind that the first part must be regarded as untrue.”
[32]Mr Pardoe submitted that the respective observations of Lord MacDermott and O’Connor LJ in those two decisions were a correct statement of the law at the time they were made and have not been overturned or qualified by the recent decision of the House of Lords in Z, to which we shall shortly return. As a result of the Judge’s refusal to give the direction sought, he submitted that the defence were deprived of the substantial benefit that would have flowed from it, namely the establishment as a conclusive fact that, in the recorded conversations originally relied on by the prosecution in relation to the four of the 14 counts on which Terry was acquitted on the Judge’s direction, someone other than he was the speaker of the incriminating words.[33]Mr Bartlett’s submissions on the effect of each of those authorities was as follows. As to Sambasivam, he said that its ratio was that a person cannot be tried again for an offence of which he has been acquitted, and that where the acquittal is so inextricably linked to another offence charged that to try him on that offence would offend that principle he can plead autrefois acquit. It is not, he submitted, authority for the proposition that the effect of the acquittal is that all issues in the trial resulting in it have been conclusively resolved in favour of the defendant. As to Hay, he submitted that the ratio of the decision was confined to its own facts in which a confession statement contained admissions made on the same occasion of more than one offence, not the case here, where each incriminating statement was made on a different occasion in relation to a separately charged offence. As to both cases, he submitted that, in any event, the observations of Lord MacDermott and O’Connor LJ should not be followed since that of Lord MacDermott, on which that of O’Connor LJ appears to have been based, are no longer good law in the light of Z.[34]The starting point to consideration of this issue is the general proposition, subject to limited exceptions derived from Sambasivam and Hay and also R v Cooke 84 Cr App R 286, CA,, derived from the Privy Council case of Hui Chi-Ming v R [1992] 1 AC 34, conveniently summarised in the current edition of Archbold, at paragraph 4-331:
“In the absence of some exceptional feature, such as the effect of an acquittal on the credibility of a confession or the evidence of a prosecution witness, evidence of the outcome on an earlier trial arising out of the same events is irrelevant and, therefore, inadmissible, since it amounts to no more than evidence of the opinion of the jury in the earlier trial: …a fortiori if the earlier trial related to different events.”
[35]The rationale of the exceptions stated, by way of example in that proposition, appears to be that where an earlier acquittal is arguably attributable to some aspect of the evidence which is common to both trials and/or otherwise relevant to an issue in the second, evidence of the acquittal may be admissible in the later trial.[36]It was on that basis that the Judge acceded to the first of Mr Pardoe’s three submissions, so as to permit the jury to know of the acquittals. However, Mr Pardoe’s case is that Hay, in particular the second sentence of the passage from O’Connor LJ’s judgment set out above, is authority for a wider exception, namely that the earlier acquittal should not only be admissible on the grounds of relevance in such circumstances, but should also be treated as positively conclusive for all purposes of Terry’s innocence of the offences of which he had been acquitted.[37]For the following reasons, we do not consider that Hay can be considered a binding authority for that proposition.[38]First, the critical matter in Hay was as to the relevance of the earlier acquittal and evidence bearing on it either way, to an issue, and hence its admissibility, in the second trial, not as to its conclusiveness as to the untruth of the confession. O’Connor LJ’s observation in the passage that we have set out above that the Judge should have directed the jury, not just that Hay had been acquitted of the offence of arson, but also that he was “positively” not guilty of it, namely that his confession to it was untrue, went further than was necessary to correct the Judge’s refusal, on the ground of irrelevance, to admit the confession statement.[39]Second, admissibility on the ground of relevance of an earlier acquittal and evidence bearing on it either way, as distinct from a notion of its conclusiveness for all purposes as to innocence of that earlier charge, is consistent with the principle established by the House of Lords in DPP v. Humphrys [1977] AC 1, HL that issue estoppel has no place in criminal proceedings. Such distinction is well supported by authority before and after Sambasivam and Hay; see, in particular, R v Ollis, which was not apparently considered in those either of those cases, but was considered and clearly highly influential on the reasoning of their Lordships in Z[40]In Ollis, the appellant had been convicted of a number of offences of obtaining money by false pretences on worthless cheques, having been acquitted at an earlier trial of a similar but quite separate, offence. The Court for Crown Cases Reserved held that the prosecution was entitled to adduce evidence upon which it had relied unsuccessfully in the earlier trial, the Court distinguishing between the rule against trying a man twice for the same offence and the admissibility of evidence relevant to the issue of his guilt of the offences charged in the second trial. Lord Russell of Killowen CJ, who gave the leading judgment for the majority, said at page 764: “The only point for our present determination is, whether that evidence was legally admissible on the ground that the facts disclosed in it were relevant to the subsequent charges. It does not appear to have been argued that it was not relevant as showing guilty knowledge, if it were not inadmissible on the grounds suggested, namely, that the facts sought to be given in evidence had already been given, and that the accused had already been acquitted of the charge to which they related. It is clear that there was no estoppel; the negativing by the jury of the charge of fraud on the first occasion did not create an estoppel; … the evidence was not less admissible because it tended to show that the accused was, in fact guilty of the former charge. The point is, was it relevant in support of the three subsequent charges? In the opinion of the majority of the court, and in my own opinion, it was relevant as showing a course of conduct on the part of the accused, and a belief on his part that cheques would not be met.” [my emphasis][41]And, as the Judge pointed out, the passage in O’Connor LJ’s judgment in Hay on which Mr Pardoe relied is plainly inconsistent with the rationale of the decision of the House of Lords in Z. In that case the appellant was acquitted of rape, the jury seemingly having accepted, or at least rendered unsure of guilt, by his defence of consent. On an issue whether the Judge had properly refused to admit, as similar fact evidence in support of the prosecution, testimony of complainants in previous prosecution for rape against the appellant, in which his defence had been consent and which had also resulted in acquittals, the House of Lords held that such evidence was admissible despite the acquittals. The reasoning of Lord Hutton, with which the other Law Lords agreed in holding the evidence to have been admissible, like that of Lord Russell CJ in Ollis, tells strongly against the broad propositions of both Lord MacDermott and O’Connor LJ in Sambasivan and Hay respectively as to conclusiveness for all purposes of an acquittal on which Mr Pardoe has sought to rely. In the following passage at 504G-H, Lord Hutton, after having considered in great detail the various relevant authoritiesand academic writings, concluded that the test is relevance, not conclusiveness for all purposes, and, in doing so, expressly qualified the breadth of Lord MacDermott’s proposition in Sambasivan:
“… I consider that provided that a defendant is not placed in double jeopardy …, evidence which is relevant on a subsequent prosecution is not inadmissible because it shows or tends to show that the defendant was, in fact, guilty of an offence of which he had earlier been acquitted. Therefore, I think the relevant passage of Lord MacDermott’s judgment … at 479, the second sentence commencing ‘To that it must be added’ requires the qualification which I have ventured to state.”
[42]There are three points to make about this expression of the law.[43]The first, which we have already made in passing, is that, in our view, its rationale requires the same qualification of O’Connor LJ’s similar broad propositions in Hay that an acquittal is “conclusive evidence” of innocence of the offence to which it relates and that any evidence in relation to it on which the prosecution seeks to rely again in other proceedings should be disregarded. An acquittal is not conclusive evidence of innocence unless by that word it is meant not guilty in law of the alleged offence to which it relates. Nor does it mean that all relevant issues have been resolved in favour of a defendant. In Hay, for example, positive innocence of the arson was not logically an inevitable conclusion to draw from the acquittal. It could have simply been that the jury had been unsure of his guilt in view of the alibi evidence. And, if evidence is relevant and admissible, we can see no reason for distinguishing between different types of evidence for this purpose. Lord Hutton made only a brief reference to Hay in his speech, noting that its factual basis did not arise in Z and stating that, “without intending to cast any doubt on the decision, …[he] express[ed] no opinion upon it”. The fact that in Hay it was, as Lord Hutton put it, “part of a confession statement, the other part of which the earlier jury ha[d] not accepted, and that in Z it was the evidence of complainants that earlier juries had not accepted, are, in our view immaterial to the principle.[44]In this respect, the law of England & Wales is at one with that of Australia and New Zealand (see R v Carroll [2002] HCA 55 and R v Degnam [2001] 1 NZLR 289), but not of Canada which treats a verdict of not guilty as “the equivalent to a finding of innocence” (see Grdic v R [1985] 1 SCR 810 and R v Arp [1998] 3 SCR 339, per Cory J, giving the judgment of the Supreme Court at 145-146. In Z Lord Hutton, towards the end of his speech at 508B, expressly differed from the reasoning of Cory J, citing for the purpose the distinction drawn by Darling J in Ollis, at 741-742, between annoyance of man by the same evidence and double exposure to the risk of being found guilty of the same crime.[45]The second point on Z is that, in our view, there can be no logical basis for restricting the House of Lord’s ruling to similar fact evidence, as suggested by Mr Pardoe. Lord Hutton, in his reasoning leading to, and in his expression of, his conclusion did not so limit it. Nor did Lord Hope of Craighead, Lord Hobhouse of Woodborough or Lord Millett in their short speeches of agreement on the issue. The critical questions are whether the evidence in question is admissible, whatever its species, as relevant to an issue in the case and whether it is fair to admit it. It just so happened that the evidence in question in Z was relevant because it was similar fact evidence. This is how Lord Hope put it, at 487F-G:
“…[The principle of double jeopardy] is not infringed if what the prosecutor seeks to do is to lead evidence which was led at the previous trial, not for the purpose of punishing the accused in any way for the offence of which he has been acquitted, but in order to prove that the defendant is guilty of a subsequent offence which was not before the court in the previous trial.”
And Lord Millett, after expressing his agreement with the reasoning of Lord Hope and Lord Hutton, said at 510F-G:
“There is no justification for the supposed rule which prevents the prosecution from making an assertion which is inconsistent with the acquittal of the defendant on an earlier and different charge. In the present case it is common ground that the evidence of other complainants is admissible as evidence of similar facts, and accordingly we are not called upon to rule upon the admissibility of such evidence.”
[46]Accordingly, we agree with the Judge in distinguishing the double jeopardy rule from admissibility of evidence of facts alleged in respect of another charge notwithstanding that it resulted in an acquittal, and his rejection of any limitation of Lord Hutton’s proposition to similar fact evidence, for which Mr Pardoe contended. Like the Judge, we can see no justification in principle for it.[47]We should add that there is nothing in the decision of the High Court of Australia in R v Carroll [2002] HCA 55, to which Mr Pardoe referred us, holding it an abuse of process to prosecute an acquitted murderer for perjury in respect of his evidence at the murder trial denying guilt, to require the decision in Z to be re-visited. As the Court held, the prosecution for perjury in such circumstances was a substantial breach of the double jeopardy rule, which, as the ratio in Z makes plain is quite different from relying, for the purpose of proving a charge, on conduct the subject of a different matter and charge in respect of which the accused has been acquitted. The Court acknowledged the scope for such a distinction at paragraph 50 of the judgment of Gleeson CJ and Hayne J, with which the other members of the Court agreed: “Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision. There may be cases where, at a later trial of other allegedly similar conduct of an accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct. R v Z, R v Arp and R v Degnan are cases of that kind. In such cases, the earlier acquittal would not be controverted by a guilty verdict on the second.[48]The third point arising out of the speeches in Z is the contribution of the principle of fairness to the question whether evidence of a previous acquittal before a jury can be contradicted by the prosecution for the purpose of proving a different offence. Lord Hobhouse spoke, at 510A-E, of fairness to both sides and the growth of protections to the defence, particularly in the advent since Sambasivam of section 78 of the Police and Criminal Evidence Act 1984:
“… Fairness requires that the jury hear all relevant evidence. … Any prejudice to the defendant arising from having to deal a second time with evidence proving facts which were in issue at an earlier trial is simply another factor to be put into the balance. The fact that the previous trial ended in an acquittal is a relevant factor in striking this balance but it is no more than that. It is not, as would be the result of upholding the rule in Sambasivam’s case, conclusive.”
In those remarks he echoed, though without citation, similar observations of Lord Lane CJ in R v H (J.R.) (1990) 90 Cr App R 440, at 445.[49]On this aspect of fairness, our reaction is the same as that of the Judge, who observed in the course of his ruling:
“… it is by no means fanciful to suggest that … a direction to the jury founded on Hay could produce an artificial, unsatisfactory and potentially unfair position in which the jury could find themselves compelled to reach a conclusion which did not accord with the merits of the evidence which they were free to assess. At this stage the position is hypothetical, because Mr Pardoe has stated that if I give the direction for which he contends he will not seek to use it to undermine the voice expert. Nevertheless I can see no logical reason why he would not be entitled to do this, provided that I give the direction he seeks.”
[50]Similarly, the Single Judge, Tomlinson J in refusing leave to appeal on this ground, observed that it would have been illogical for the law to have required the Judge to direct the jury that Terry could not have been in the car at the times when the incriminating statements were made simply on the basis that there was no evidence other than that of Mrs McClelland directly locating him in the car at those times. It would also have been unfair to have permitted Terry to suggest to the jury the conclusiveness of his innocence on the counts on which he had been acquitted because of Mrs McClelland’s unsupported evidence on those charges, so as to unseat her supported evidence on the remaining charges. As the Full Court observed with some under-statement in granting leave on this ground, the point is “far from meritorious”; or, as Lord Hobhouse might have put it, it is plainly unfair.

The European Authorities

[51]Finally, Mr Pardoe sought to rely on a number of Strasbourg authorities that “the voicing of suspicions” about an acquitted person’s guilt in a compensation claims by him in respect of proceedings resulting in that acquittal is contrary to the presumption of innocence enshrined in Article 6(2) of the European Convention of Human Rights. See: Sekanina v Austria 17 EHRR 221, at 235, para 30; Rushiti v Austria, Appn No 28389/95, 7-8, para 31; Allenet de Ribemont v France, Case No3/1994/40/529, paras 35 and 36; and Demir v Austria, Appn No 35437/97 (5 November 2002). Mr Pardoe argued that the general expressions of the Court in those cases extended beyond the context of the judicial decisions as to compensation in which they arose. He suggested that the Judge’s ruling in this case, that, if Terry sought to rely on the acquittals before the jury, the prosecution could advance evidence in rebuttal, was “a head-on attack on the integrity of the acquittals and … inconsistent with the Article 6 presumption of innocence”.[52]Mr Bartlett’s response to this argument was short, namely that they establish a principle against voicing suspicion in compensation cases as to a defendant’s guilt in respect of charges of which he has been acquitted, but have no application to questions of admissibility of evidence as to what a defendant did in such cases where it is relevant to a different charge on which he is being tried.[53]In our view, Mr Bartlett is correct in that submission. It is one thing to allege or, or even to imply, in a criminal prosecution or associated compensation proceedings that a defendant is guilty of an offence of which he has been acquitted. It is quite another, as recently re-affirmed by the House of Lords in Z, that evidence of what an accused did in connection with the offence of which he has been acquitted may be adduced in evidence of that conduct if and to the extent that it is relevant to the offence on which he is being tried and it is fair to admit it.[54]Accordingly, we are of the view that the appeal must fail. The Judge, in the ruling under challenge, correctly applied the law to the circumstances of the case in holding that the acquittals, though potentially relevant and admissible to the issues before the jury, did not oblige him to direct the jury in relation to those issues that they were conclusive evidence that Terry had not committed the alleged offences to which they related. We are also of the view that he was correct in his ruling, contingent on Mr Pardoe attempting to use them for some such purpose in support of the defence case on the remaining charges, that it would open to Mr Bartlett to adduce evidence in rebuttal relevant to any such new issues. In the event, as we have said, the acquittals were before the jury; the Judge directed them as to their effect in appropriately spare terms; Mr Pardoe did not seek to take advantage of them in any way as part of the defence; and Mr Bartlett had no occasion to call any evidence in rebuttal going to the circumstances of the acquittals or the evidence bearing either way on them. No unfairness or other injustice flowed from the Judge’s rulings or from his characteristically competent and fair conduct of the trial and summing-up - certainly nothing that could have approached rendering any of these strongly evidenced convictions unsafe.[55]Terry’s appeal against conviction is, therefore, dismissed.

Appeals against sentence

[56]As we have said, both Colman and Terry appeal, with the leave of the single Judge, against their respective sentences of ten years imprisonment over-all.[57]The main thrust of their complaints was that the sentences of seven years imprisonment imposed in each case for the aggravated burglary at Taran Microsystems were manifestly excessive and that so was the consecutive imposition of three years in each case for handling the computer equipment stolen from Cosmic Technology. Regardless of the precise make-up of the resultant period of ten years imprisonment, they maintained that it was in its totality excessive for what was part of the same or similar course of dishonesty.[58]The Judge, in his sentencing remarks, expressed the view that, all save one of the offences, the handling offence, should be treated as part of the same series of offences, with the result that the sentence for the aggravated burglary should be the sentence for that series. He treated the handling offence, in respect of which he imposed the consecutive sentence of three years’ imprisonment, as “a different matter” seemingly on account of the large value of the stolen equipment involved, namely just under £100,000.[59]Mt Warwick Tatford, on behalf of Colman, and Mr Pardoe, on behalf of Terry, drew the Court’s attention to a number of unreported sentencing cases, suggesting, they maintained, that seven years imprisonment was excessive, or at least on the high side, for the offence of aggravated burglary at Taran Microsysystmes. Without going into the facts of those cases, all of which were sentences on pleas of guilty, we are not convinced that they do more than suggest that the sentences of seven years in this case were at the top end of the scale. Moreover, it is to be remembered that the Judge treated the aggravated burglary as part of a series, imposing concurrent sentences on the remaining offences, save for the handling.[60]It is in the Judge’s treatment of the handling offence that we have more sympathy with Mr Tatford’s and Mr Pardoe’s submissions. Although, having regard to the value of the goods involved, three years imprisonment as a discrete sentence cannot be criticised, the Judge’s treatment of it on that account as not part of the same course of criminality is, in our view questionable. It occurred close in time and involved a number of factual elements common to the other offences, the use of Unit 9 and the Subaru car in particular. Because of its seriousness, it clearly required an addition to whatever was the appropriate sentence for the aggravated burglary and the other offences. But the addition of three years for what was in truth part of the same course of serious and sophisticated criminal conduct produced a sentence that was over-all disproportionate. The appropriate sentence for the totality of the criminality would, in our view, have been eight years imprisonment. The Judge could and should have achieved that by imposing six years for the aggravated burglary and two years consecutive for the handling, leaving, as he did, the other sentences he imposed to be served concurrently.[61]We should add, as the Judge observed in his sentencing remarks, that there was little to choose between the appellants as to their culpability in these offences or as to their relatively good records before embarking on them.[62]Accordingly, for the reasons that we have given, in the case of each appellant we substitute sentences of six years and two years respectively for the aggravated burglary and handling offences, the two sentences to be served, as before, consecutively. To that extent only we allow the appeals against sentence, with the result that both appellants will serve a total of eight instead of ten years imprisonment.

Cited in 1 later judgment