Huntley, R. v [2006] EWCA Crim 1709

No. 2005/05785/C4, 2005/06477/C4

[2006] EWCA Crim 1709

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Monday 12 June 2006

Between

R E G I N ACrown

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE MOSES

MR JUSTICE KEITH

and

HIS HONOUR JUDGE GORDON

(Sitting as a Judge of the Court of Appeal Criminal Division)

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- v -

Between

BEN RONALD HUNTLEY

SEAMUS COLGAN

__________________

Computer Aided Transcription by

Smith Bernal, 190 Fleet Street, London EC4

Telephone 020-7421 4040

(Official Shorthand Writers to the Court)

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MISS A FOSUHENE appeared for APPELLANT BEN HUNTLEY

MR B SMITTEN appeared for APPELLANT SEAMUS COLGAN

MR J D WHITLEY appeared for CROWN

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J U D G M E N T

[1]This is an appeal against conviction by leave of the single judge who granted leave on three grounds, the most significant of which concerns a breach of the Code in relation to identification.

[2]The appellant Ben Ronald Huntley, together with another young man Seamus Colgan, were convicted by a jury in October 2005 at Wood Green Crown Court of an offence of assault occasioning actual bodily harm and criminal damage. We will turn, if it proves necessary to do so, to the question of sentence later.

[3]The victim was a Mr Mohammed Dastani, who had been driving his minicab in the early hours of the morning of 10 October 2004. According to the appellants, he had left his car to assist another driver with whom they were arguing. However, the victim said that, although he had stopped his car to assist another driver, he was then set upon by the two appellants, whom he did not purport to identify, accompanied by a third man. That is important because only the victim and the appellant Huntley, when he gave evidence, said that there were three people involved.

[4]The victim described the incident in terms familiar to all those who have listened to accounts of violence in the early hours of the morning in that area of London. The description did not tally with what other witnesses said in an important respect; the said only two men were involved. He had stopped the car to help another driver in dispute with three men. As he approached he said that the three men had come towards him, while the driver he had gone to assist drove off. He gave a description of all three men, but the description was such that it would not have been sufficient to identify the appellant Huntley as one of the participants. There were discrepancies in his description of the appellant being shorter, maybe 5'9", with blond hair, light- coloured jeans and proper, strong-looking dark shoes. The first man who approached him, he said -- and the prosecution said that it was the appellant's co-defendant Colgan -- struck him with a chain. They had grappled together. The victim had let Colgan go and had run off, but had run down a dead-end. He was pursued. All three attacked and hit him. One of them hit him with bottles. Another hit him with pieces of stone, even though he was begging for mercy and, at one stage, begging for his life. He attempted to escape from the blind alley but was pursued. He was kicked on the body and attempted to hide underneath the vehicle from which he had escaped. The vehicle was attacked. Windows, the boot, doors, the bonnet, mud-flaps and wings were damaged in the rage of those who attacked him. He was adamant that there were three people involved.

[5]An independent witness, Preidoon Pahlvan, did not purport to identify the two men who, he said, were attacking the victim. Although the street lighting was good, he gave a description that did not match the correct description, as given by the police at the time, of the appellant Huntley.

[6]The most important witness from the prosecution's point of view was a man called Mustafa Akbas. He had been driving home when he saw two men running across the road pursuing a third man. He saw them catch up with the victim in the alley-way. He said that both were screaming and beating him up. One man (a blond man) had a chain with which he struck the victim. The other man had a bottle with which he hit the man in the face. The victim was screaming, "Please don't do it". The witness went into a supermarket for help. He said that he was away for a period of five seconds. But it is notorious that no eye-witnesses of this sort of incident can give an accurate description of time. Far better as an estimate was the time it would have taken him to go into the supermarket as a matter of emergency, seek help (none was forthcoming) and come out. The important evidence he gave in-chief was that when he came out, the two men were still pursuing the victim, still beating him and smashing up his vehicle. He described the incident as taking 20 or 25 minutes (again, no doubt, an exaggerated and inaccurate length of time). The significant part of his evidence was that he said that he saw the two men who had been beating up the victim walk away some metres, by which time the police arrived. He said that, having kept those two men under continuous observation from the time that he left the supermarket, he then pointed out those two men to the police and the police arrested them. There was no dispute but that the two men the police arrested were the two men pointed out by the witness Akbas. There was a dispute, however, about the circumstances in which he pointed them out. The police said that he had merely pointed them out, and had not gone up to them, whereas he said that he had walked down the road near the men before he pointed them out. The witness Akbas said that there were only two men involved.

[7]When WPC Church arrived at the scene, the appellant Colgan, in the presence of Huntley, had said, "The cab driver tried to run us down". Indeed Colgan throughout had not denied that he had used violence on the victim, but said that it was only in self-defence once the man had attacked them and had tried to run them down.

[8]The following morning both Colgan and Huntley were interviewed. At that time the police had not taken statements from any of the witnesses to which we have already referred. But there was a full interview of Huntley during which questions were asked of him and he made no comment. The questions were asked in a neutral way, for example, whether he had attacked anybody. Reply, "No comment". He was asked if he had assaulted the man, "No comment". This, said the appellant, was on the advice of his solicitor. There was no dispute but that the solicitor had given that advice, there having been no disclosure and no possibility of any disclosure of what potential witnesses might say. But it is of note that there was an opportunity for the appellant to say what he subsequently said. Indeed from time to time he did not take the advice of his solicitor: he denied having anything to do with the chain which was at one point used to attack the victim.

[9]Once the judge had ruled that there was a sufficient case in relation to identification to go before the jury, Huntley gave evidence. His account was that there was a third man called John (although he had said in an earlier defence statement that the third man was called Tony). He said that a scuffle had broken out but that it was triggered by the victim first hitting Colgan with the chain. His account was that he had not participated. He had not wanted to become involved and had moved further up the road. He subsequently joined Colgan and was then arrested when they were both together about 100 metres away.

[10]Miss Fosuhene on behalf of the appellant, in clear, admirable written and oral submissions, has taken the point, first of all, that there should have been an identification parade consistent with the requirements of D:3.12, the relevant Code at the time. That reads:

"Circumstances in which an identification procedure must be held Whenever: (i) a witness has identified a suspect or purported to have identified them prior to any identification procedure set out in paragraphs .5 to 3.10 having been held; or (ii) there is a witness available, who expresses an ability to identify the suspect, or where there is a reasonable chance of the witness being able to do so, and they have not been given an opportunity to identify the suspect in any of the procedures set out in paragraphs 3.5 to 3.10, and the suspect disputes being the person the witness claims to have seen, an identification procedure shall be held unless it is not practicable or it would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offences. For example, when it is not disputed that the suspect is already well known to the witness who claims to have seen them commit the crime."

Miss Fosuhene contends that the requirement to hold an identification parade was triggered by the fact that the witness Mr Akbas had purported to identify the appellant Huntley, had pointed him out to the police, and had said in his written statement that he would recognise the assailants again if he was given an opportunity to do so. Because of the failure by the police to obtain statements earlier, the defence obtained statements only in April 2005, many months after this incident. It is quite apparent that by the time the defence was requesting an identification parade it would have been far too late for any accurate identification to have taken place. But Miss Fosuhene points out that there was always the possibility that the witness, seeing the appellant Huntley in a line with others, might have said, "Not only do I not recognise anybody but I can say positively that none of the people attacking the victim is there". In any event the police cannot rely upon that delay since, had they obtained statements earlier and held an earlier identification parade, the witness might himself have pointed out that it was not Huntley who was there.

[11]The question then arises as to whether it was incumbent upon the judge to withdraw that evidence of identification from the jury. In our view it was not. Only one witness could be relied upon by the Crown to put the appellant Huntley in the frame as a participant in the violence used against the victim. His evidence -- and it was a matter, in our judgment, for the jury to assess -- was that he had kept the participants who were beating up the victim in constant vision once he had left the supermarket. That was evidence for a jury to weigh.

[12]The judge delivered, in our judgment, a perfectly correct summing-up to the jury. He pointed out the dangers, pointed out the view that he had taken that there ought to have been an identification parade, and asked the jury to bear in mind the defects in the evidence which flowed from that failure. In our judgment he was correct in refusing to withdraw that evidence from the jury. There was sufficient evidence, despite its dangers and despite the absence of an identification parade, for a jury properly to weigh it. The jury did weigh it and found it of sufficiently convincing force as to convict the appellant Huntley. In our judgment the failure to withdraw this evidence does not render this verdict unsafe. It is by now trite law (see, for example R v Forbes

[2001] 1 AC 473

) that a mere breach of the Code is not dispositive of the question as to whether the verdict was unsafe, provided the judge correctly directs himself as to the effect of the Code (and he did in this case), and fairly leaves the issues, together with the breach of the Code, to the jury, it is not automatic that the verdict will be considered unsafe. In our judgment the evidence of the witness Akbas of a continuous observation from the time of the violence up to the time of the arrest was of sufficient cogency to entitle the jury to convict. We dismiss that ground of appeal.

[13]The second ground relates to whether the jury should have been directed (as the judge did direct them) as to the provisions of section 34 of the Criminal Justice and Public Order Act 1994 and asked, in the conventional way, to consider not only the fact that the solicitor had given advice not to answer in interview, but whether it was reasonable for the appellant to rely upon that advice. Miss Fosuhene contends that the evidence was so weak that the only proper direction that the judge ought to have given was for the jury not to hold the 'no comment' answers against the appellant.

[14]We reject that ground of appeal. It was perfectly proper for the police to ask questions so as to give the appellant the opportunity very soon after the incident to say, "Yes, I was there, but I took no part in it". He failed to take that opportunity, despite the caution, and we have already observed that he did not always follow the advice of the solicitor in relation to the answers which he gave. The jury were perfectly entitled, once a proper direction was given, to regard the fact that he did not say, "No, I wasn't involved" at the time as at least of some significance in relation to the evidence against him. We reject that second ground of appeal.

[15]The final ground of appeal relates to the admission of evidence of previous conviction for violence so as to show, as the prosecution submitted, evidence of a propensity for violence, pursuant to section 101(1)(d) of the Criminal Justice Act 2003. Miss Fosuhene does not contend that that was not a legitimate gateway. Her point was of more force; it flowed from the earlier submissions, she said. Theoretically at least she was wholly correct. If this was a weak case, as she contended it was, then the judge should not have allowed the prosecution to bolster it up by introducing evidence of propensity. The real question was as to the quality of the other evidence.

[16]For the reasons that we have already given we do not accept that this was a weak case. Bearing in mind that in so many cases of violence every eye-witness will give a different account, this, in comparison with other cases, was comparatively strong. It is quite rare to have an alleged assailant still upon the scene in a position to be pointed out to police officers who arrived on the scene, in time and in circumstances of a continuous observation. We think, on the contrary, that the evidence was strong. In those circumstances it was perfectly legitimate for the jury to allow the prosecution to introduce the evidence of this young man's previous propensity to violence. For those reasons we reject the third ground of appeal.

[17]Those were the three grounds of appeal on which Miss Fosuhene relied. We rejected them all. In those circumstances the appeal against conviction is dismissed. (The court was addressed in relation to the appeals against sentence)

LORD JUSTICE MOSES: For the reasons we have already given, this was a terrible occasion of violence. These two young men set upon a wholly innocent victim in the small hours of the morning. They were clearly influenced by drink. When they are not in drink they do not behave like this. It must be understood that significant sentences in the region of three years are wholly appropriate for this sort of sustained violence. The judge cannot be criticised, and these young men and their families must understand that three years' imprisonment is just the sort of sentence that is appropriate for this type of violence.

[19]However, although Huntley has a bad record for violence (for which he has never previously received a custodial sentence) there are, as sometimes happens, many things that can be said in his favour. He is a tower of strength and support to his family; he behaves decently and properly towards them in a way that has been remarked upon in the excellent letters and good reports written about him. In those circumstances we take the view that, whilst a sentence of three years' imprisonment was appropriate for this violence, it did not sufficiently take into account the personal mitigation. We readily understand why; the Recorder had sat and listened to this awful account of that night in respect of which Huntley did not even have the grace to plead guilty. The powerful personal mitigation of the fact that he was looking after his mother who had suffered a stroke, and, of equal importance, providing a father-figure to his sisters, and particularly to one of them who suffers from an unfortunate condition which seriously affects the quality of her life. It is because of those peculiar and exceptional circumstances of his personal mitigation that we feel able to reduce the sentence. In those circumstances we feel, taking into account that personal mitigation, that the appropriate sentence in this case is one of two years' imprisonment. To that extent we will therefore allow his appeal by reducing the sentence of three years on the count of actual bodily harm to one of two years' imprisonment. The sentence on count 2 will remain unaltered.

[20]Similarly, in the case of Colgan, he is a young man who has not been in trouble before. He is a young man of 23 who, when he is not in drink, behaves in a wholly responsible and laudable way. He looks after his father, and had the prospect of helping others less fortunate than himself in South Africa. Yet when in drink he behaved in this wholly unforgivable way towards the victim Mr Dastani. Although he had never been in trouble before, the Recorder quite rightly dealt with him in the same way as Huntley, since it appears from all the evidence, in relation to which the Recorder was in the best position to judge, he triggered the whole offence and thus merited the same sentence as Huntley. But for similar reasons, because there is much personal mitigation of an exceptional nature, we take the view that the judge did not sufficiently reflect that in the sentence of three years' imprisonment. In those circumstances we will in his case too reduce the sentence on count 1 from three years' imprisonment to two years' imprisonment.

[21]We wish to emphasise that this case is no authority for the proposition that three years is not an appropriate sentence for violence such as this. It is no authority at all. It merely seeks to reflect the exceptional personal mitigation in this case. But the sentences in each case will be allowed to the extent of reducing the sentence of three years' imprisonment to one of two years. To that limited extent both appeals against sentence are allowed. _____________________________