George, R. v [2005] EWCA Crim 2813

Case No 200501182/A8[2005] EWCA Crim 2813
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 13th October 2005
Strand
London, WC2
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE GOLDRING
MR JUSTICE WILKIE
Between
R E G I N ACrown-v-
Between
OWEN GEORGE
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 R RENDER (SOLICITOR ADVOCATE) appeared for APPELLANTMR J AUSTIN appeared for CROWN
J U D G M E N T
[1]MR JUSTICE GOLDRING: At issue in this appeal against sentence, brought by leave of the Single Judge, is whether the judge who did so should have conducted a Newton hearing.[2]It arises in this way. On 15th October 2004 the appellant was arrested by two plain-clothed police officers outside a shop in Cardiff. He had been seen conducting a drugs transaction with a woman. When the police approached him, he sought to hide the heroin which he had by putting it in his mouth. When arrested he had on him five wraps, weighing 2.03 grams, £145 in cash in a back pocket and £35 in his hand. The woman, Miss Flemwell, was also arrested. She said that she knew the appellant as 'T boy'. She regularly bought heroin from him. She had arranged to do so on this occasion. When she saw the police officers arrest the appellant she had thrown away the wrap which she had just bought off him.[3]When interviewed on four occasions, the appellant said he was a stranger to Cardiff. He had only arrived three days before his arrest. He had been thrown out of home by his parents because of his drug addiction. He denied supplying any drugs to Miss Flemwell.[4]He denied being 'T boy'. He said that the drugs found on him were for himself and two friends. They had bought them together. He was indicted for possessing the diamorphine with intent to supply, which was count 1 on the indictment and also supplying some cannabis which was count 2.[5]On 4th January 2005 the appellant first appeared, on this occasion by video link, at Cardiff Crown Court before His Honour Judge Hopkins QC. He pleaded guilty to counts 1 and 3. He indicated that he would plead guilty to count 1 on the basis of his account in the police interviews. The prosecution indicated that it was content with that, subject to the Crown Prosecution Service lawyer speaking to the officer in the case. The basis of the plea was indicated to the judge. The prosecution sought an adjournment so that the officer could be spoken to. When that adjournment was sought, this interchange occurred:
"And does the impression arise in the defendant's interview that he is in fact a heroin user? Your Honour, yes. And is the evidence that the prosecution have already obtained quite clearly to the effect that this is perfectly untrue? Your Honour, no. It is not such much that, as the fact that of course the prosecution say he was selling the drug. At first blush, the papers would seem to suggest that he was selling rather than simply buying and sharing with friends. Yes, but not to fund any habit that he himself has, because the hair evidence, as I understand it, demonstrates quite clearly that he is not a heroin user. He is a commercial supplier, isn't he?"
The reference to "the hair evidence" was the absence of any indication of heroin in the appellant's hair on analysis. The judge asked whether any check had been made on the appellant's mobile telephone. He said it ought to be. Finally, in response to the request for a seven day adjournment, the judge said this:
"There will be seven days for the prosecution to consider in this case the basis of the plea."
[6]The case was listed again on 11th January 2005. This time the judge was His Honour Judge Richards. There was a written basis of plea on count 1. It reflected what the appellant had said in the interviews. His Honour Judge Richards did not comment upon it. He did not specifically dissent from it. He simply adjourned the case for two weeks for reports. He made it plain that he was giving no indication of sentence.[7]On 25th January 2005 the case was listed for sentence in front of His Honour Judge Hopkins. The prosecution indicated the basis of plea. The learned judge said this (page 2F of transcript):
"Do you agree that the ultimate decision as to whether or not a basis of plea is accepted, is for me? Yes. I reject that basis of plea. I propose to sentence the defendant upon the basis that he is retailing heroin on the streets of Cardiff."
[8]Mr Render, on behalf of the defendant, as he then was, said this:
"On that basis, your Honour, in my respectful submission, there will be need to be a Newton hearing."
The judge agreed. There was discussion as to the witnesses who should be called. The judge later said this: "I would have thought upon the basis of the police evidence alone, it is pretty clear what the defendant was doing. Her evidence [he was referring there to Miss Flemwell] I would have thought, makes it abundantly clear. She sought him out because she knew that he was supplying heroin." (Page 3B).[9]A little later, Mr Render said this. The context was

the judge having reserved the Newton hearing to himself (page 4D):

"Can I respectfully draw your Honour's attention to the fact that you have reserved the matter to yourself? This is in the context of one judge, taking one view and your Honour taking a different view."
[10]In that observation it seems Mr Render was referring to His Honour Judge Richards, albeit somewhat overstating the position in front of him. The judge responded in these terms:
"No, no. No other judge has taken any different view. When the matter was before His Honour Judge Richards, all that he was faced with was the prosecution saying 'The basis of plea is accepted.' I don't think he expressed a view at all, did he? He accepted that the matter would be sentenced on that basis. Yes. And I am the sentencing judge and I refuse to sentence on what I consider to be a fatuous basis. Ultimately it is the view of the sentencing judge. That is me."
[11]Mr Render, on behalf of the appellant places great reliance upon the use of the word "fatuous".[12]On 10th February 2005 the Newton hearing took place before His Honour Judge Hopkins. There had, prior to that hearing, been a written application by Mr Render to the court. It is stated that Mr Render intended to apply for His Honour Judge Hopkins to disqualify himself and thereafter for the case to be transferred to another circuit. The application was made. Its basis was that the judge should disqualify himself on the grounds that his firmly expressed views to the entered pleas of guilty disclosed objective bias. That application failed. The Newton hearing took place. It ran into the following day. The judge did not immediately give judgment. On 18th February 2005, he did so. It is full and careful.[13]It dealt, first, with the earlier hearings. As to his approach to the hearing of 4th January 2005, the learned judge set out what had happened. He said this:
"Having read the committal papers and the notice of further evidence, dated 21st December, I was surprised that the prosecution were even entertaining such consultation."
That is a reference to the prosecution seeking an adjournment for consultation. We resume:
"The case against the Defendant, of being a commercial street dealer, was, on the face of papers, a compelling one in my judgment."
He referred then to the hearing on 11th January 2005 before His Honour Judge Richards. It is unnecessary to go into that.[14]He referred next to the hearing on 25th January 2005, and said this (page 3G):
"I had re-read the papers... prior to that hearing and had seen, to my astonishment, what had happened on the 11th January... What occurred on 25th January is fully recorded in the transcript to which I have just referred. In a nutshell, as the sentencing Judge and as I was entitled to, I rejected the basis of plea which I described as, I quote 'fatuous' and indicated that I propose to sentence the Defendant as a street dealer."
[15]Having fully set out that background, the learned judge summarised the evidence which he heard in the Newton hearing. He said, at the beginning of that part of his judgment (page 5B):
"That is the background leading to the Newton hearing which began mid afternoon on February 10th, a hearing of importance both for the public and the Defendant, bearing in mind the gulf between the case as I saw it on paper and the basis of plea and the substantial difference in approach to sentencing, dependent upon my findings. In assessing the evidence I have, for the purposes of the Newton hearing, of course, confined myself to considering only that which was actually called by the Prosecution, the forensic evidence read with the consent of the Defence and the evidence given by the Defendant himself. I have also reminded myself of the burden and standard of proof. I have also carefully considered the comprehensive and, if I may say so, well presented submissions of Mr Render."
Having dealt with the prosecution witnesses in turn, the judge analysed the scientific evidence which did not support, as he claimed, that the appellant was a drug addict. He analysed the appellant's interviews. He came, in broad terms, to the following conclusions. Miss Flemwell was totally credible. He believed the police evidence. He considered the scientific evidence to be of great significance. He found the appellant's account incredible. He finally said this, page 17D:
"I reject the defendant's account. I am convinced that he has been a regular visitor to, if not permanently resident in Cardiff, for some time and has, for I again believe Miss Flemwell on this point, been a street level supplier of heroin for a long time. This is, in my judgment, a clear a case of street level commercial supply as one could possibly imagine, with the Defendant being caught, effectively, red-handed."
[16]Finally, on 18th February, he imposed in respect of count 1, a sentence of 5 years' imprisonment with no separate penalty on the remaining count. He said that he was reducing the credit for the plea because of the Newton the hearing.[17]The issue before this Court can be shortly stated. Mr Render, on the appellant's behalf, submits that he was entitled to a fair hearing by an independent and impartial Tribunal in accordance with Article 6(1) of the Convention. In the light he submits, of the judge's earlier observations, in particular, the use of the word "fatuous", there was, he submits apparent or objective bias in the Tribunal.[18]He relies upon the approach set out in the case of R v Porter & McGill [2002] 2 AC 357. In particular, he submits that: "The question is whether the fair-minded and informed observer, having considered the facts would conclude that there was a real possibility that the Tribunal was biased." (See paragraph 103in the speech of Lord Hope of Craighead) He also relies, upon the decision of Hauschildt v Denmark 1989 EHRR 266. That decision, it seems to us, adds nothing to Porter & McGill.[19]As to his criticisms of the judge's observations, they amount to this: first, his use of the word "fatuous"; second, the totality of what he said during the different hearings; third, he criticises the judge for reserving the case to himself; fourth, he makes some criticisms of the decision itself. He submits that the justification for the decision was deliberately blurred.[20]In order to decide whether in any given case there existed a reasonable apprehension of bias, it is necessary, as the authorities make quite clear, to have regard to the facts as a whole, moreover to see them in context. The position, as it seems to us, here, is this.[21]First, whether in any given case the basis of plea is acceptable is a matter for the judge who has to sentence the offender. This Court has on many occasion (and recently) emphasised how undesirable it is for pleas to be accepted on an artificial basis. If the judge, on reading the papers, comes to the view the basis of plea proposed appears, on the face of it, to be artificial, he is bound to say so whatever view the prosecution or the defence may have. For it is in the public interest that an offender is properly sentenced for what he has done.[22]Second, for the judge to state that the plea appears on the face it artificial is based simply upon his reading of the papers before him. So to state is wholly unobjectionable. No fair-minded and informed observer would conclude there was a real possibility in such circumstances that the judge was biased. The judge is saying no more than the written evidence suggests that what happened is different from what the offender asserts. When requiring a Newton hearing, he is saying no more than whether the written evidence is correct or the assertions are correct, must be resolved by hearing the evidence. It is only if after the evidence the court is sure the basis of plea is not made out that it will reject that basis. In other words, when the judge calls for a Newton hearing, he is doing so because he has formed the provisional view that what is being advanced by the defence does not, or may not, represent what really happened.[23]Third, here the written evidence and the appellant's assertions were materially different. On their face, as is often the case, the appellant's assertions appeared unlikely. In making the comments he did, albeit possibly in robust terms, the judge was saying no more than on the face of the papers the appellant's account appeared unlikely. Thereafter, a full and lengthy hearing took place. It is not suggested it was conducted other than with scrupulous fairness by the judge. Having heard that case, he analysed the evidence with great care and balance.[24]Fourth, we see no reason why the judge should not have reserved the case to himself. As we have said, it is important to consider the facts as a whole when dealing with the topic of objective bias. In this case, after hearing all the evidence, what was the judge's provisional view became the view he was sure about. As it seems to us, a consideration of the sequence of events as a whole, in the way which we have indicated, leads to the inevitable conclusion that to a fair-minded and informed observer, there was no real possibility that the judge was bias.[25]That being so, this appeal against sentence cannot succeed. There being no other basis upon which the appeal is advanced, it must be dismissed.