Bowers & Ors, R. v [2006] EWCA Crim 1433

[2006] EWCA Crim 1433

Case No 2004/6486/D1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT SOUTHWARK

JUDGE ELWEN

T2002/7329

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20 th June 2006

Before

LORD JUSTICE THOMAS

MR. JUSTICE WALKER

SIR RICHARD CURTIS

Between

ReginaRespondent

Anthony BowersAppellants

Lewis NichollAppellant

Martin BowersAppellant

Joseph AshmanAppellant

Jonathan Michael TurnerAppellant

Timothy Barnes QC and Miss J Carter Manning (instructed by CPS) for respondent

Mr Dafydd Enoch for first and third appellants

Mr T Forster for second appellant, Mr S Hammond for the fourth appellant and Miss C Firth for the fifth appellant.

Hearing Hearing date: 3 March 2006

Judgment

[1]Between August 2002 and April 2003, the appellant Anthony Bowers was the principal of a conspiracy based on the Peacock gym and warehouse at Canning Town in the East End of London which carried out a number of sophisticated crimes of dishonesty. The co-conspirators included the other four appellants.

[2]They were charged and committed to the Crown Court at Southwark; the trial date was fixed for April 2004 before HH Judge Elwen. The indictment contained 7 counts. i) Count 1 was a global count of conspiracy ii) Counts 2 and 3 charged respectively conspiracy to obtain by deception and to handle a container load of blenders and a container load of Hi-Fi equipment from Thamesport. iii) Count 4 charged conspiracy to obtain by deception two containers of Absolut Vodka from Grangemouth, Scotland iv) Counts 5 and 6 charged respectively conspiracy to obtain by deception and to handle a container of stationary tape from Felixstowe v) Count 7 charged conspiracy to obtain by deception £1.1m belonging to HSBC Bank at Gatwick Airport

[3]On 20 April 2004, Anthony Bowers pleaded guilty to Counts 2, 4 and 7, the appellant Martin Bowers to Counts 3 and 7 and the appellant Ashman to Counts 2, 4 and 7. On 15 June 2004, the appellant Turner pleaded guilty to Counts 2, 4 and 5. It is not necessary to refer to the position of the other defendants who pleaded guilty.

[4]There was a trial of two of the defendants. Paul Bowers was found guilty on counts 3 and 7 on 5 August 2004 and the appellant Nicholl was found guilty of counts 3, 6 and 7.

[5]On 15 October 2004, the conspirators were sentenced by Judge Elwen as follows: i) Anthony Bowers: a) Count 2: Conspiracy to obtain property by deception, 3 years b) Count 4: Conspiracy to obtain property by deception, 3 years consecutive to Count 2 c) Count 7: Conspiracy to obtain property by deception, 6½ years, consecutive to count 2 This made a total of 12½ years ii) Nicholl a) Count 3: Conspiracy to handle stolen goods, 2 years b) Count 6: Conspiracy to handle stolen goods, 3 years consecutive to count 3 c) Count 7: Conspiracy to handle stolen goods, 6 years consecutive to Count 3 This made a total of 11 years iii) Martin Bowers a) Count 3: Conspiracy to handle stolen goods, 2 years b) Count 7: Conspiracy to obtain property by deception, 5 years consecutive to Count 3 This made a total of 7 years iv) Ashman a) Count 2: Conspiracy to obtain property by deception, 2½ years b) Count 4: Conspiracy to obtain property by deception, 2½ years consecutive to Count 2 c) Count 7: Conspiracy to obtain property by deception, 5 years, consecutive to count 2 This made a total of 10 years v) Turner a) Count 2: Conspiracy to obtain property by deception, 3 years b) Count 4: Conspiracy to obtain property by deception, 3 years consecutive to Count 2 c) Count 5: Conspiracy to steal, 3 years, consecutive to count 2 This made a total of 9 years vi) Paul Bowers (who does not appeal) was sentenced to 2 years on count 3 and 4 years on Count 7, a total of 6 years imprisonment.

[6]The five appellants all appeal by leave of the single judge against their sentences; all the appellants contend that the sentences passed on them were manifestly excessive.

[7]Anthony and Martin Bowers appeal also on the ground that the sentence passed was contrary to an indication said to have been given by the trial judge that the maximum sentence he would impose, in the event of acceptable pleas of guilty, would be 7 years imprisonment in total; leave was given by the single judge to Anthony Bowers on this ground and we granted leave to Martin Bowers. It is convenient to consider this ground first.

The appeal of Martin and Anthony Bowers on the “indication” issue

[8]It is contended on behalf of the Bowers appellants that the indication was given through a court official to counsel and that was done with the authority of the judge. It is common ground that any giving of an indication in this way was highly irregular and unorthodox. An application was made to us on behalf of the Bowers appellants for permission to call four barristers and two members of the court staff to give evidence to us on what happened. We granted that application at a hearing for directions and heard that evidence.

[9]An application was also made to us on behalf of the appellants at the directions hearing that the judge be asked to provide a statement and that counsel for the appellants should have an opportunity to test it. We decided that we would hear the evidence of counsel and the two members of the court staff and then determine in the light of their evidence what further evidence, if any, was necessary.

The proceedings

[10]The proceedings were sent for trial from Bow Street on 8 May 2003; the first hearing was on 16 May 2003; further hearings took place at approximately monthly intervals. During one of those hearings the judge indicated in open court that maximum credit would be available until a late stage for any defendant who pleaded guilty. Discussions took place between the lawyers for the prosecution and the defence as to possible pleas that the defendants might make which would be acceptable to the prosecution.

The conversations involving Mr Carter

[11]Sometime in the early part of the proceedings, probably in December 2003, counsel for Mr Anthony Bowers, Mr David Whittaker, had asked Mr Carter, the court clerk who normally sat with Judge Elwen if the judge would see him on sentence on this matter, as he had wanted to know if any sentences would be concurrent or consecutive.

[12]Mr Carter conveyed the message to the judge. Mr Carter’s evidence was that the judge had told him that, as the tariff for the most serious offence (which he, Mr Carter, understood (wrongly) to be the handling) was known, he invited counsel to do his own arithmetic; the judge would not see counsel. The judge agreed he could pass those words on to counsel. Although Mr Carter, as the clerk to the court, clearly knew there was more than one count on the indictment, he told us he did not give any thought to the sentences on the counts for the less serious offences.

[13]When Mr Whittaker had been appearing at Southwark Crown Court conducting another trial before a different judge in either January or February 2004, he was told by Mr Carter that the judge would not see him in relation to sentence in the Bowers case; that the judge had said that he could work out what the maximum was and what the maximum credit would be. Mr Whittaker’s evidence was that he understood that would mean seven years, but it did not answer the question as to whether this was concurrent or consecutive. He thought that this approach by Mr Carter was highly unorthodox and irregular.

[14]On Thursday 18 March 2004 junior counsel for the prosecution indicated that the prosecution might be prepared to accept a plea to count 1 as sufficient. Leading Counsel for the prosecution, Mr Timothy Barnes QC, took a different view and on 19 March 2004, informed the defendants and the court that such a plea would not be acceptable as it might unduly limit the judge’s powers in respect of confiscation and his sentencing powers as he would not be able to deal with the defendants on multiple counts with the possibility of consecutive sentences.

[15]One of the defendants in consequence made an application to the court that the prosecution’s action was an abuse of process and it should not be entitled to proceed on the full indictment; this was subsequently dismissed by the judge

The conversations between Mr Turner and Miss Cohen

[16]Between Friday 19 March and Wednesday 24 March 2004, probably on Tuesday 23 March 2004, the second junior counsel for Anthony and Martin Bowers, Miss Samantha Cohen, had a conversation with the listing officer of the Southwark Crown Court at the court, Mr Nick Turner to see whether there needed to be a further hearing before the judge about access by the appellants in Bellmarsh prison to video and other equipment for use in preparing the case. Mr Turner had been engaged in listing since 1995 and had been the listing officer at Southwark since October 2003.

[17]It was Miss Cohen’s evidence: i) Whilst discussing that issue, she was asked by Mr Turner if there was going to be a trial. She replied that she was not sure, as the defendants would want to know what sentence they were likely to get. Mr Turner then told her that the judge had said it would be 7 for those most involved and less for the others. ii) Mr Turner had used the expression that “this was not attributable to the judge”. She understood from this that, although the indication was from the judge, it was not one that would be repeated in formal circumstances by the judge. It had not come from Mr Turner personally, because he would have had no idea of the sentence in a case like the present. iii) She knew that the maximum sentence for conspiracy to obtain by deception was 10 years and 7 years would be the sentence after full credit; however she wanted to know if it was 7 years on everything or 7 years for count 7, the charge in respect of Gatwick which all regarded (rightly) as the most serious offence. She therefore asked Mr Turner if it was 7 for Gatwick or 7 for everything. Mr Turner had replied that he did not know and would need to find out from the judge. She left the listing office. iv) Shortly after on the same day, she had returned to the listing office. Mr Tuner had told her that the judge had said that it was 7 on everything. She understood that this came from the judge and that the judge intended it to be conveyed to the defendants so they would know what they would get if they pleaded guilty.

[18]Mr Turner’s evidence was: i) He had on occasions prior to this been asked by judges at Southwark Crown Court to pass on sentencing indications to counsel; he could not recall the number of such occasions, but it was more than 10. ii) In relation to the present case, he had been approached by some of the defence counsel to ascertain what the views of the judge would be to a plea of guilty. iii) He had seen Judge Elwen and told him this. The Judge had told him that in the event of a plea of guilty he would be minded to give full credit for a plea of guilty and to discount the sentence he would otherwise have passed. He indicated a sentence of 7 years. He asked the judge whether he could pass that information to counsel. The Judge had authorised him to do so. He would not have passed that information without the express authorisation of the judge. He could not recall whether the judge had indicated that the defendants would receive no more than 7 years regardless of the number of counts to which they pleaded or whether it was 7 years on each count. He did, however, see the judge on a number of occasions about the issue of plea and sentence. iv) The judge never told him he would not see counsel. v) Mr Carter was present on some of the occasions when sentence was discussed with the judge, but he could not recall the specific occasions; Mr Carter accepted that he was present at occasions when conversations took place between Mr Turner and the judge on sentence, but he stood to one side to allow them to have the conversation and did not listen.

The communication of the conversations to the other counsel

[19]After the conversation, Miss Cohen telephoned Mr David Whittaker and also Mr David Burgess, the more senior junior counsel who was appearing with her for Martin Bowers, as well as their solicitor, Mr Peter Hughman. Miss Cohen had not raised the matter with the prosecution or the judge, because the judge had initiated an unorthodox communication and it was not for her to say to the judge that he was acting wrongly and he should do it properly.

[20]It was Mr Whittaker’s evidence that: i) He was appearing in Chelmsford Crown Court when he was telephoned by Miss Cohen and told of what Mr Turner had told her. He had never come across this situation before or since. ii) He knew at once what had happened was highly irregular and unorthodox. He wished he had not been made a party to it. iii) He considered whether the indication had come from the judge or whether Mr Turner had been on a frolic of his own. He concluded that Mr Turner was not on a frolic of his own, both because it would be professional suicide for him to have acted without the authority of the judge and because Mr Turner would not know the sentence would be 7 years. Furthermore, if the indication had not come from the judge it would have been an elaborate deception on the part of Mr Turner to have said he would enquire of the judge if it was for one count or for all counts and then to have given an answer. Moreover, the sentence was not out of line if concurrent sentences were to be given. He had also understood that the judge wanted the case to plead as the judge had made it clear that maximum credit would be given and he had heard the judge was going on holiday the day the case was going to start. He also thought that the judge was unhappy with the prosecution because they had not stuck to their agreement to accept the plea on count 1. He was also influenced by the conversation with Mr Peter Rowlands, counsel for another defendant, referred to at paragraph 22.ii) below. iv) His first instinct was to speak to the judge and ask him if this communication, which was unorthodox and wrong, had come from him. He decided, after seeking advice from more senior colleagues, not to see the judge as there would be no point; the judge would not see him and would not confirm the indication. This was because he had been told by Miss Cohen that the judge would not confirm what Mr Turner had told her and because of the earlier conversation with the clerk to which we have referred at paragraph 13. He thought the indication was consistent with that and, from what he had been told by Mr Carter, he thought that the judge would not see him. He also thought that it was highly unlikely that the judge would say in open court what had passed through the court staff. He considered his duty to his client paramount. v) He considered whether he should see the prosecution; he thought that Mr Barnes QC would tell him to go and see the judge. He decided not to, as he had already rejected the course of going to see the judge. He accepted in cross-examination that, in hindsight, he should have told Mr Barnes. vi) He considered whether he should remain silent or tell his client; he concluded it was his duty to tell his client who was concerned at the length of the sentence and the confiscation orders that might be made.

[21]The evidence of Mr David Burgess, counsel for Martin Bowers, was that he had no doubt that the source of the indication was the judge, but he did not seek to get confirmation from the judge, as he tended to fall in with Mr David Whittaker’s thinking. He did not think about raising the matter with the prosecution.

[22]Mr Peter Rowlands, counsel for the appellant Jonathan Turner, was also engaged in discussions with the prosecution. His evidence was: i) His overall position was that if the prosecution accepted pleas to counts other than counts 1 and 7, then his client, the appellant Turner, would plead guilty come what may; he did not want a sentence indication. ii) In the course of a discussion with Mr Nick Turner as to whether there would be a trial, Mr Nick Turner gave him an indication, which Mr Rowlands understood to have come from the judge, that no matter what pleas were tendered to which part of the indictment, the maximum sentence would be 7 years. He told his client of this. iii) He was also told by Mr Whittaker that he had received an indirect communication from Judge Elwen that any defendant who pleaded guilty would get a maximum of 7 years; he understood this to mean 7 years was the maximum irrespective of the number of pleas which a defendant tendered. He told Mr Whittaker of his conversation with Mr Nick Turner. The appellant Turner does not rely on any indication as a ground of his appeal.

The conference on 24 March 2004

[23]Miss Cohen arranged for the case to be listed for a mention on 24 March 2004 with the express purpose that Anthony and Martin Bowers would be brought to the cells at Southwark not for an appearance at court, but for a conference with counsel and solicitor in the cells of the court, instead of counsel and solicitors having to go to Bellmarsh prison. A note of the conference in the cells on 24 March 2004, attended by counsel and the solicitor for Anthony and Martin Bowers was taken by Miss Cohen. There was a discussion of the issues; these two appellants were told that the judge had “informally let it be known that [guilty] pleas will get seven years for everything. Although could not go [to the Court of Appeal] with it, he would find it difficult to renege on that.” Mr Whittaker’s evidence was that he told the Bowers appellants that he had thought that the indication had come from the judge, but he could not recall whether he had advised them of his view that the judge would not confirm it in open court. He believed he told them that it was irregular and unorthodox, that he had no reason to suppose that the judge would not honour the sentence indication, but that it would be difficult to pursue the matter on appeal.

The pleas of guilty on 20 April 2004

[24]On 19 April 2004, there was a further conference with Anthony and Martin Bowers. Miss Cohen’s note of that conference recorded that if the appellants pleaded guilty to Count 7 (Gatwick) and sufficient other counts (probably counts 2, 3 and 4), the judge had commented on the maximum sentence of 7 years and there was the additional benefit of the way in which confiscation proceedings would be dealt with.

[25]On 20 April 2004, both these appellants entered the guilty pleas we have set out.

[26]It was common ground that: i) no one acting on behalf of the appellants told those acting for the prosecution of what Mr Turner and Mr Carter had said. ii) No defence counsel had seen the judge in his chambers about sentence. iii) No one raised the issue of sentence in open court.

The hearings in October 2004

[27]The appellants were not sentenced until October 2004 because there was a trial of the defendants who had pleaded not guilty.

[28]On 14 and 15 October 2004 the sentencing hearing took place. Nothing was said about what Mr Tuner and Mr Carter had communicated. The judge made clear before passing the sentences to which we have referred that: i) The pleas entered on 20 April 2004 were to be treated as having been entered at the earliest realistic opportunity; these had resulted in the radical shortening of the trial and great savings to the public purse ii) He had therefore given appropriate discounts for those pleas, tempered by the fact that there was irrefutable evidence on each count to which the appellants had pleaded. iii) It was not appropriate to treat these offences as part and parcel or arising from the same facts and that therefore concurrent sentences would not be appropriate; these were separate and discrete criminal ventures and justified consecutive sentences,

[29]On 29 October 2004, there was a further hearing at the request of Mr Whittaker. He told the judge that prior to the pleas being tendered on 20 April 2004, they had at their disposal indications on the length of sentence that they had understood had emanated from the judge and had been provided by Mr Turner and Mr Carter. Miss Cohen had been told by Mr Turner that the appellants Bowers who were principals in the case would receive 7 years if they pleaded guilty; that Miss Cohen had sought clarification as to whether this was for a single offence or related to the indictment as a whole; that he could not answer that question immediately and he returned and informed her that it was for the indictment; she had understood that this came from the judge. Mr Whittaker had been given the indication through Mr Carter. He submitted to the judge that the Bowers appellants had a legitimate expectation that the sentence of 7 years was what they would receive if they pleaded guilty. Mr Burgess made a submission to like effect. Letters had been written to Mr Tuner and Mr Carter to which there had been no response. The judge was invited to vary the sentence or hear evidence.

[30]Mr Barnes QC made clear to the court that no one had told him or anyone on behalf of the prosecution of these matters before that day. It is common ground that this was in fact the case

[31]The judge stated he had read letters written to Mr Carter and Mr Turner setting out what he had been told:

“My recollection is quite clear; on a day which I cannot precisely pin-point, but which was before pleas to any particular counts had been indicated, my clerk said to me that counsel wanted to know if I would give an indication. I told him, in no uncertain terms, I did not give indications and that I would not, adding that counsel were experienced and quite capable of working things out for themselves. I understand that this is what my clerk told them. At no time did I authorise Mr Turner to approach counsel and convey any of the information he is said to have imparted. That is my position and I do not propose to accept the invitation put forward by the defence if they want to do anything about it.”

[32]When grounds of appeal were initially settled for the appellant Anthony Bowers, no point was taken by Mr Whittaker in relation to the conversations between Ms Cohen and Mr Turner.

The position of the judge

[33]The evidence we heard established that: i) Miss Cohen was told by Mr Nick Turner that the judge had said it would be 7 for those most involved and less for the others; he made clear to her that this was from the judge, but was not attributable. ii) In response to her enquiry, Mr Turner subsequently told her that the judge had said that it was 7 on everything. iii) Ms Cohen passed this on to the other counsel.

[34]Mr Turner’s evidence was unequivocal in that he had said what he had said only because he was authorised by the judge. In Warren v Warren

[1997] QB 488

, it was held that, although a judge was competent to give evidence, judges could not be compelled to give evidence in relation to their conduct or matters of which they became aware when performing their judicial functions.

[35]We decided in the light of the evidence of Mr Turner to invite the judge to comment on the evidence given by him and by Mr Carter; we directed that transcripts of the evidence be sent to him for him to determine whether he wished to make any comment.

The judge responded in writing:

“I cannot account for what Mr Turner may have said without my authority. It is worthy of note that no complaint was made by learned counsel, on 15 October 2004, that I had reneged on an indication and passed a sentence significantly different from what they maintain they had been led to believe. I would, respectfully, add that it is not my habit to give indications as to sentence, except formally and with the participation of prosecuting counsel. It was never my intention, in this case, to indicate to anyone that I had in mind a total sentence, embracing the whole of the indictment, and certainly not for such a thing to be communicated informally to defence counsel alone. However, reflecting carefully on what I can recall having taken place almost two years ago, I cannot now say, with absolute certainty, that I did not say to Mr Turner something which he may have misconstrued, although I am unable to think what it might have been”

[37]We received written observations from counsel on this statement. We were also required by the members of the bar who gave evidence before us for an opportunity of seeing any observations made about them in the course of this judgment. We acceded to their request and provided them with a copy of the drafts of paragraph 23 to 46 of the judgment. They informed us they had no observations.

Our conclusion

[38]There are two clear principles that should have governed what happened: i) First, justice must, save in exceptional circumstances, be done in public; see, for example, Rose LJ in Dossetter [1999] 2 Cr App (S) 248 at 253 and the Attorney General’s Guidelines on the Acceptance of Pleas issued on 7 December 2000 where it is stated that “justice in this jurisdiction, save in the most exceptional circumstances, is conducted in public”. An application of that first principle is the clear rule that issues relating to pleas and to sentence should be dealt with in open court, save in exceptional circumstances. Two citations will suffice; in Harper-Taylor and Bakker (1988) NLJ 80, Mustill LJ stated (in a passage cited in Terrence Carl Smith

(1989) 90 Cr App R 413

and in Pitman

[1991] 1 All ER 468

) in relation to the practice of seeing the judge in his private room:

“A first principle of criminal law is that justice is done in public, for all to see and hear. By this standard a meeting in the judge's room is anomalous: the essence, and indeed the purpose, being that neither the defendant nor the jury nor the public are there to hear what is going on. Undeniably, there are circumstances where the public must be excluded. Equally, the jury cannot always be kept in court throughout. The withdrawal of the proceedings into private, without even the defendant being there, is another matter. It is true, as this Court stated in Turner (1970) 54 Cr App R 352 at 360, that there must be freedom of access between counsel and the judge when there are matters calling for communications or discussions of such a nature that counsel cannot in the interest of his client mention them in open court. Criminal trials are so various that a list of situations where an approach to the judge is permissible would only mislead; but it must be clear that communications should never take place unless there is no alternative. Apart from the question of principle, seeing the judge in private creates risks of more than one kind, as the present case has shown. The need to solve an immediate practical problem may combine with the more relaxed atmosphere of the private room to blur the formal outlines of the trial. Again, if the object of withdrawing the case from open court is to maintain a degree of confidence, as it plainly must be, there is room for misunderstanding about how far the confidence is to extend; and, in particular, there is a risk that counsel and solicitors for the other parties may hear something said to the judge which they would rather not hear, putting them into a state of conflict between their duties to their clients, and their obligation to maintain the confidentiality of the private room. The absence of the defendant is also a potential source of trouble. He has to learn what the judge has said at second hand, and may afterwards complain (rightly or no) that he was not given an accurate account. Equally, he cannot hear what his counsel has said to the judge, and hence cannot intervene to correct a misstatement or an excess of authority: a factor which may not only be a source of unfairness to the defendant, but which may also deprive the prosecution of the opportunity to contend that admissions made in open court in the presence of the client and not repudiated by him may be taken to have been made with his authority." In Warth (1991) 12 Cr App (S) 680, Lord Lane made clear “First, once again, no visits to the judge except in the most exceptional circumstances; certainly not to discuss any question of plea. Secondly, if there must be such a visit and if the judge is thought to have made some sort of promise or indication about punishment, counsel should make a note of it then and there and ask the judge to approve the note and initial the note before counsel goes to see his client and makes any mention or suggestion of a promise by the learned judge. It is only in that way that counsel can protect himself and make sure that he understands plainly what it is the judge has said, and make sure that his recollection will not be at fault when he goes to his client. He will then both protect himself and his client from any misunderstandings, misapprehensions or indeed from wishful thinking.”

Numerous other cases make this clear: see Grice (1978) 66 Crim App R 167, Atkinson (1978) 67 Cr App 200, Ryan (1978) 67 Cr App 177; Keily [1990] Crim LR 204 and A-G’s Reference 44 of 2000

[2001] 1 Cr App R 27

and the cases cited below. It is no part of our system of justice for anyone whether they be judge, court officer, prosecutor or defence lawyer to seek “to do deals” in private; transparency and openness are the hallmarks of our system of justice and to the maintenance of public confidence in that system. ii) Second, any communication by a party to the court or by the court to a party must be communicated to the other parties. Save in those circumstances where the making of without notice applications is permitted, this rule is again fundamental to the openness and transparency of our system of justice.

[39]These two principles were applied in the well known propositions set out in Turner

[1970] 2 QB 321

(1970) 54 Cr App R 352

(reference to the facts of which we make at paragraph 40) and in paragraphs 45.3 and 45.4 of the Consolidated Practice in force in 2004:

“There must be freedom of access between advocate and judge. Any discussion must, however, be between the judge and the advocates on both sides. If counsel is instructed by a solicitor who is in court, he too should be allowed to attend the discussion. This freedom of access is important because there may be matters calling for communication or discussion of such a nature that the advocate cannot, in his client's interest, mention them in open court, e.g. the advocate, by way of mitigation, may wish to tell the judge that the accused has not got long to live because he is suffering maybe from cancer of which he is and should remain ignorant. Again, the advocates on both sides may wish to discuss with the judge whether it would be proper, in a particular case, for the prosecution to accept a plea to a lesser offence. It is imperative that, so far as possible, justice must be administered in open court. Advocates should therefore, only ask to see the judge when it is felt to be really necessary. The judge must be careful only to treat such communications as private where, in fairness to the accused, this is necessary. .. Where any such discussion on sentence has taken place, the advocate for the defence should disclose it to the accused, and subject to the exception of those matters of which he should remain ignorant, such as cancer of which he is unaware, inform him of what took place.”

[40]There is no appeal against conviction; it is not contended that the breach of these fundamental principles in the circumstances of this case are such that the court should set the plea or conviction aside: cf Llewellyn (1978) 67 Cr App Rep 149, Grice

(1977) 66 Cr App R 167

, R v James [1990] Crim L R 815 and Pitman (above). In Turner, counsel had seen the judge in his room and then told the defendant that it was his own personal view that if he was convicted he would go to prison, but if he pleaded guilty he would get a non custodial sentence. The way in which this was done conveyed to the defendant’s solicitor the impression that this had come from the judge and the court accepted that the defendant might well have thought that it came from the judge. The court clerk then came and gave counsel the impression that the message he was authorised to give was that if there was a plea at that stage the court would pass a non custodial sentence. The court concluded that in all the circumstances there had not been a free choice as to whether he should plead, given the fact that the defendant thought that the intimation emanated from the judge.

[41]The appeal in the present case is, in contradistinction, one against the sentence imposed. It was contended that the judge should not have passed a greater sentence than that purported to have been indicated through Mr Nick Turner, as the two appellants would retain a legitimate sense of grievance. Although it was accepted by counsel who argued the appeal on behalf of the appellants that what these appellants contended had happened was highly unorthodox and irregular, that did not affect the position of the appellants; that was because the judge had authorised the communication and counsel owed a duty to their client to pass on what they had been told. There was no point in their counsel raising the issue with the judge as the judge had made it clear through Mr Nick Turner that the indication was informal and would be denied if raised openly.

[42]It is, in the light of the judge’s statement set out at paragraph 36, possible that there may have been some sort of misunderstanding between the judge and Mr Nick Turner. We set out at paragraph 49 our reasons for concluding that we do not need to resolve whether there had been such a misunderstanding. At this point we observe that, given the necessity of adherence to the two principles which we have set out, it is essential that judges take care to avoid saying anything which could give rise to any possible misunderstanding in relation to sentencing.

[43]What then happened, in consequence, in this case went far beyond anything that is set out in the cases or could even have been contemplated in those cases. As relayed in the evidence to us, this was a case where it was believed by those concerned that: i) The indication was one which, although apparently coming from the judge, would be denied if a request was made to mention it in open court; ii) If there was communication to the prosecution, the indication would be brought into the open and denied. Two fundamental principles of the way justice is administered in this country were being negated by any participation in such a process. In essence what was being done on this basis could only be viewed as a device – passing secretly to defendants a message to achieve a result which would be denied if raised openly. It was therefore entirely right for counsel who gave evidence to accept that what they believed had happened in this case was highly unorthodox and irregular.

[44]It is clear from the two principles which we have set out (and a review of the cases to which we refer in this judgment) that what should have happened was that: i) What had been communicated by Mr Turner and Mr Carter should have been brought to the attention of counsel for the prosecution. ii) The issue should immediately have been raised with the judge in open court, so the position could be brought into the open and made public and transparent.

[45]This did not happen. Counsel for the Bowers appellants decided, in accordance with their duty to their clients, to tell their clients what they believed had happened, without the steps set out in paragraph 44 being taken. This was without doubt an error on their part, but one we are sure was made by them in good faith. However, when they told these appellants what had transpired, we are sure they did so in terms where they made clear to the appellants that the indication was made in an unorthodox and irregular way, that the judge was unlikely to renege on his indication but that it would be difficult to appeal if he did.

[46]The court was not asked if the appellants could give evidence; in Nazham and Nazham

[2004] EWCA Crim 491

, this court decided it could receive the testimony of appellants where it was contended by the prosecution that the change of plea following an irregularity had not been brought about by that irregularity. Given our findings as to what counsel told these appellants, the ordinary inference to draw in the absence of evidence from the appellants is that they understood what counsel was telling them

[47]In these circumstances, these appellants can have had no legitimate expectation that this irregular and unorthodox method of conveying an indication was one they could rely on, even though we accept that they were told that it came in this irregular and unorthodox way from the judge. They were told by counsel what the risks were and decided to take them. We do not consider therefore that the appellants can have a legitimate sense of grievance in these circumstances. This was not a case such as Terrence Carl Smith where the defendant was misled by counsel into believing that the judge had given an undertaking.

[48]Nor do we think that a right thinking member of the public would consider that justice required that this court substitute for the sentence passed the sentence mentioned to counsel by Mr Nick Turner. The position is, for example, quite different from Bird

(1977) 67 Cr App R 203

. The judge in that case had given an indication of sentence before the trial and during it; during the trial, the judge had sent for both counsel and asked defence counsel if the defence wished to fight on. On being told, the defendant did not, he indicated that he would pass a suspended sentence if the defendant pleaded guilty at that stage, but there would be a sentence of immediate imprisonment if he did not. Counsel, after consulting the authorities, subsequently enquired if this was confidential as he had not passed this to his client. He was told by the judge that it was, the trial continued and the defendant found guilty. The court observed:

“ [counsel in the case] quite rightly considered that what transpired in the judge's chambers, or part of it at least, ought to be said in open court in the interests of his client. Counsel has a high duty to the court but it does not override his concurrent duty to his client. It would have been wrong in our view if [counsel in the case] had not sought to make not only plain, but public what ought not to have been said at all in the privacy of the judge's chambers.”

In the course of his mitigation, counsel disclosed what had happened in the judge’s chambers and made the point that, if the court had thought that a suspended sentence was the appropriate sentence for a plea of guilty, the court should not pass a more severe sentence because the defendant had exercised his right to put the prosecution to proof. The judge nonetheless passed an immediate sentence of imprisonment, telling the defendant that he had lied in the witness box, but he did not punish him for that. This court concluded:

“It has long been one of the essential requirements of our system of justice that it should not only be done but those that see what is done should respect what is done and understand that it is done as a matter of justice and for no other reason. Anyone who knew what had gone on in the course of this trial must have realised that the principle had not been borne in mind. It had certainly not been applied, and so it comes about that whereas an immediate sentence of imprisonment for 21 months would have been a perfectly proper one, the manner of its imposition was, it seems to this Court, improper. The circumstances which led up to its being passed were so irregular that it cannot be supported. To redress the situation thus created, rather than in the interests of the defendant who has no real claim to clemency, we feel obliged, in order to preserve the good face of justice, to quash the sentence of 21 months' imprisonment and to substitute a suspended sentence.”

[49]Given that the appellants can have had no legitimate expectation that the irregular sentence indication would be treated as binding, we find nothing in the present case to indicate that the sentence passed should be reduced in order to preserve the good face of justice, to use the phrase in Bird. We reach that view by examining the position as made known to the appellants, this being our conclusion even if what was made known to them - as to the indication having come indirectly from the judge - was true. This ground of appeal therefore fails without any need to determine what in fact was said by the judge either to Mr Carter or to Mr Turner. We have considered whether we should invite the judge to give oral evidence to us in that regard, though it would of course be for him to determine whether or not to give evidence on the authority to which we have referred at paragraph 34. As such evidence would not affect our conclusion on this aspect of the appeal, we do not think it would serve any useful purpose to do so. We therefore have not asked the judge to agree to give oral evidence; nothing in this judgment should therefore be taken to indicate that we have formed any view one way or the other as to what he actually said, or as to whether there is or is not any substance in potential criticisms which might be made of him, Mr Carter or Mr Turner.

[50]We hope that what happened in this case will never happen again. The procedure for obtaining a sentence indication has now clearly been set out by this Court in Goodyear

[2005] EWCA Crim 888

and provided the guidance given is followed and the proceedings conducted openly and transparently (as this court made clear in Wedlock-Ward

[2005] EWCA Crim 3367

they should), a situation such as this should never occur again.

The appeal on the other grounds

[51]The conspiracy alleged by the prosecution was, as we have set out, based on the Peacock gym and warehouse; the gym was run as a legitimate business by the three Bowers brothers, but they used the office to plan the offences and the warehouse to store the stolen property. It was the prosecution case that Anthony Bowers was the principal and his lieutenants were Ashman and Bowers. There were extensive audio and video recordings of the premises.

[52]The circumstances of the offences charged on the indictment can be briefly summarised: i) Counts 2 and 3 involved the dishonest acquisition of a container of food blenders and a container of hi fi systems to a retail value of over £80,000. These had been obtained on 22 November 2002 by two of the defendants who had arrived at the depot at Thamesport with documentation and vehicles with false registration numbers but which corresponded to those which the genuine haulier was intending to use. The goods were taken to a storage facility booked by the appellant Turner and then transferred to the Peacock warehouse. There was evidence that also linked Ashman, Martin Bowers and Nicholl to this. ii) Count 4 involved the dishonest acquisition of two container loads of Absolut Vodka which had a retail value of over £639,000. These were driven away from Grangemouth on 18 January 2003 by the same two defendants as had been involved in the Thamesport offence. There was evidence which linked Ashman, Turner and Anthony Bowers to this. iii) Counts 5 and 6 involved the dishonest acquisition of a container of stationary tape which had a value of £23,000 on 11 February 2003. The container was driven away from premises at Felixstowe which had been left unsecured. The same storage facility was used as that in Count 2. There was evidence to link Turner and Nicholl to this. iv) Count 7, as we have stated, related to the dishonest acquisition of £1.1m in cash from Brinks Matt at Gatwick Airport on 26 March 2003. This involved an elaborate deception in converting a van into an imitation Brinks Mat van and acquiring false documents and inside information. The cash was handed over, but those involved in the acquisition were arrested as they left the airport. There was evidence to link Ashman, Martin and Anthony Bowers and Nicholl to this.

[53]The circumstances of each of the appellants was: i) Anthony Bowers: He was 47 years of age; he had several convictions for offences of dishonesty; for the most serious of these he received a sentence of 7 years for robbery, burglary and theft in 1980. His last conviction was for an offence of assault occasioning actual bodily harm in 1986 He had benefited the local community through the work of the gym; numerous testimonials referred to the work he had done in this respect. ii) Nicholl: He was 57; he had several previous convictions in relation to dishonesty and drugs; the most serious was a sentence of 10 years in 1980 for the importation and supply of drugs. iii) Martin Bowers: He was 54. He had no previous convictions and had played a significant role in establishing the gym as a centre of excellence; again numerous testimonials referred to his work at the gym, his promotion of boxing and in organising summer camps and helping youths in many respects, including young offenders and those on probation. iv) Ashman: He was 37. He had several convictions for offences of dishonesty; the most serious and most recent was in 1991 when he was sentenced to a total of 5 years imprisonment for burglary of commercial premises. v) Turner: He was 44. He had numerous previous convictions, principally for offences of dishonesty, the last of which was in 1990. He had served in 2000 a sentence of 9 months imprisonment for possession of cannabis resin with intent to supply. He had, however, done much for youth football and usefully spent his time on remand.

[54]All the appellants, except Nicholl, had the mitigation of guilty pleas for which the judge gave them full credit.

[55]We have carefully considered the submissions made in respect of each of the appellants. In essence, it was submitted that the sentences were far too long for the type of crimes committed and the sentences should not have been consecutive; the judge had failed to have proper regard to the principle of totality. It was stressed that no violence was involved and that these were cases to be distinguished from cases such as Turner

(1974) 60 Cr App R 67

. We were also referred to R v Beston and others (2004) 2 Cr App (S) 52, R v Luttrell

[2004] EWCA Crim 1344

, Sutcliffe (1995) 16 Cr App R (s) 69, Webbe

[2001] EWCA Crim 1217

and A-G’s Reference70 of 1999 [2002] 2 Cr App Rep (S) 28.

[56]In our judgment, each of the sentences reflected the criminality involved. These were professional criminals operating on a large scale over a period of time; these were not one off offences (such as that considered in Betson), but serious and meticulously planned criminality involving the corruption of employees of those who either held or transported the goods to provide inside information. No arms were used nor was violence, but each of the offences called for a significant sentence which it was right to make consecutive to one another. i) Anthony Bowers: He was the principal behind the offences and had encouraged others to participate. His sentence for the Gatwick offence reflected the gravity of that offence and the consecutive sentences for the other two offences their lesser nature and the principle of totality. ii) Nicholl had been found guilty by the jury; the judge concluded, as he was entitled, having heard the evidence, that he played a significant role in the offences, though he had not been at the heart of the planning. He was right to do so; we therefore reject the submission made on his behalf that his role was a lesser one or that there was any disparity of his sentence with that of Paul Bowers. The most significant sentence reflected his role in the Gatwick offence, being the most serious. iii) Martin Bowers was an able and active lieutenant to his brother; the judge gave him full credit for the service he had given to the community and for his previous good character; but he had become involved in serious criminality and the sentences passed properly reflected that. iv) Ashman did not participate in the original planning of the offences, but he had acted as an able lieutenant playing a significant role in the conversion of the van for the Gatwick offence. v) Turner, though not a lieutenant, had played a significant role in the offences to which he had pleaded guilty; his sentence reflected that role and the fact that he was not involved in the most serious of the offences.

[57]Each of the sentences was severe and towards the upper end of the range of sentences, but none was in our judgment manifestly excessive. The appeal on this ground also fails.