Kepple, R. v [2007] EWCA Crim 1339

[2007] EWCA Crim 1339Case No 2006/04284 C4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM THE CROWN COURT AT LEEDS
MR RECORDER ROSE
T2006 0238
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/06/2007
Before
LORD JUSTICE THOMASMR JUSTICE KEITHMR JUSTICE LLOYD JONES
Between
ReginaRespondentJohn KeppleAppellant
Mr N de la Poer for AppellantMr N Worsley for RespondentHearing Hearing dates : 11 May 2007
Judgment
[1]On 27 September 2005 there was a fight in the men’s toilets of the Dog and Gun public house at York Road, Leeds between Mr Bones and the appellant. Mr Bones sustained injuries including bruising to the head and wounds to the eye which required stitching. The appellant was arrested and charged with unlawful wounding contrary to s.20 of the Offences Against the Person Act 1861.[2]The appellant was committed on bail to the Crown Court at Leeds. A defence case statement was served in which it was said that the appellant acted in lawful self defence after being attacked by Mr Bones. On 25 May 2006 the appellant appeared at a Plea and Case Management hearing in the Crown Court at Leeds and pleaded not guilty; he was bailed to attend trial.[3]On 3 July 2006 the case was listed for trial before Mr Recorder Rose and a jury in the Crown Court at Leeds on an indictment which charged the appellant with the offence under s.20. On that morning, counsel for the prosecution informed counsel for the appellant that he was intending to make an application to add a count charging the appellant with wounding with intent contrary to s.18 of the Offences Against the Person Act 1861.[4]Counsel for the appellant had a conference that morning with the appellant and was introduced to two of the witnesses to be called on his behalf; the appellant was told that the prosecution were going to apply to amend the indictment.[5]When the case was called on later that same day neither the appellant nor the witnesses could be found.[6]The prosecution applied to the judge to try the appellant in his absence. The judge acceded to this application in a clear ruling: i) There was no doubt that the appellant had been told on 25 May 2006 that the trial would proceed in his absence if he failed to attend. ii) The appellant knew the prosecution intended to add a count in respect of the offence under s.18. iii) There was no explanation of his failure to attend that was innocent as he had been in court on the morning. The appellant knew of the serious position he was in. iv) The factors set out in Jones [2002] UKHL 5 were considered; any prejudice to the appellant was caused by the appellant’s own actions. v) The appellant had given instructions to counsel, including instructions on the bad character application. vi) It was just in all the circumstances to proceed with the trial.[7]After that decision and during the trial counsel for the appellant and his solicitors continued to represent the appellant; the appellant did not appear at all at his trial. Despite the issue of a bench warrant the police failed to apprehend him until October 2006.[8]The prosecution then applied to add the count under s.18. No opposition was put forward to that application. The judge acceded to it. The jury was sworn in.[9]The trial then proceeded. The prosecution called the following witnesses. i) Mr Bones stated he had drunk some beer at home and then had gone to the Dog and Gun. There he had consumed more alcohol; he was in a jovial mood and had been celebrating the birth of his first granddaughter. He went to the toilet. As he did so, he looked round and saw two people sitting down. He glanced at them but had no interaction with them. He entered the toilet. When he was about to use the urinal, he felt a blow to the side of his face which he thought was a head butt. He saw a shadow coming towards him and then more blows came. He was stunned and tried to throw defensive punches, but there were too many incoming blows. He then slumped to the floor where more blows were delivered and he passed out. He denied in cross examination that he had been acting in an aggressive or threatening manner during the attack. He denied knowing the appellant. He denied starting the fight. During the course of that cross examination, the judge made a ruling in respect of the scope of cross examination by counsel for the appellant. ii) Caroline Greenwood, a barmaid at the public house, said Mr Bones had been drinking at the pub. He was in a good mood and telling her of the birth of his first granddaughter. She recalled Mr Bones going to the toilet and recalled him stopping and saying something to another man by the one-armed bandit. She told Mr Bones to go to the toilet and ignore the other person. Mr Bones pointed at the appellant and the appellant told Mr Bones not to point at him or else he would kill him. Mr Bones apologised and went on to the toilet. A few minutes later she said she was told that the appellant was not at the table where he had previously been sitting. She went to the men’s toilet to check everything was all right. She was unable to open the doors. Mr Bones’s back was against the frosted glass panel. She heard the appellant shouting that he was going to kill Mr Bones and Mr Bones was shouting “Come on then.” She left and called the police. The man who had been sitting with the appellant asked Miss Greenwood if she had called the police; when she said that she had the man went to the toilet and returned with the appellant. The two left the pub. Another customer then went to the toilet and came out. He told Miss Greenwood to call an ambulance and she did so. She was cross examined briefly; she accepted Mr Bones was drunk. iii) Mr Simpson, a customer at the Dog and Gun that evening, saw Mr Bones make his way to the toilet and the appellant get up and talk to him. He then saw the appellant sit down and the appellant get up and follow Mr Bones into the toilet. iv) Mrs Simpson, Mr Simpson’s wife, gave evidence that she had met Mr Bones once before as a customer and he had seemed to know the appellant by name. She recalled him going to the toilet and the next thing she saw was him being carried out on a stretcher. She had seen the appellant coming from the toilet. v) Forensic evidence was given by a finger print expert that two glasses taken from the bar had the appellant’s fingerprints on them. vi) A policeman gave evidence in relation to the arrest and the appellant gave a no comment interview. vii) An application was made, in accordance with the notice which had been properly given, to admit evidence of the defendant’s bad character. This included a conviction in 2001 for violence.[10]On the morning of the second day, after some of the prosecution evidence had been called, counsel for the appellant applied to discharge the jury on the basis that the appellant had not been arraigned on the new count. The judge refused the application for the reasons we set out later at paragraph 13 below. At the close of the prosecution case, counsel for the appellant made a further application to discharge the jury. That was again refused by the judge. The judge then summed up the case; he expressly pointed out to the jury that the defendant’s absence was to be taken as no evidence of anything and it should not be held against him or in any way go to his guilt of the offence with which he was charged. No criticism is made of the summing up.[11]The jury retired and considered their verdicts for just under 2½ hours. They unanimously convicted the appellant of unlawful wounding with intent contrary to s.18. After the appellant’s arrest in October 2006, he was brought before the Crown Court and subsequently sentenced at Leeds Crown Court on 3 January 2007 by Mr Recorder Rose to 54 months imprisonment for the offence under s.18 and a 3 month consecutive sentence for breach of his bail.[12]The appellant appeals to this court by leave of the single judge against his conviction on two grounds. i) The judge erred in law in permitting the appellant to be tried in his absence because the appellant had not been arraigned on the count in respect of the offence under s.18; he had then erred in not discharging the jury for the same reason. ii) The judge had erred in restricting the cross examination in the ruling he made during the cross examination of Mr Bones. At the conclusion of the hearing, we allowed the appeal and ordered a re-trial. Our reasons for allowing the appeal were the following. (1). The decision of the judge to proceed with the trial without an arraignment[13]As we have mentioned at paragraph 8, counsel for the appellant made an application to discharge the jury on the basis that the appellant had not been arraigned on the count in respect of s.18. The judge refused the application in another clear ruling: i) The appellant was well aware of the application to amend and aware that the trial would proceed in his absence if he failed to attend. ii) It was implicit in the power to try a person in his absence that certain aspects of the trial would have to proceed on the basis that the defence lawyer could not obtain instructions. iii) After reference to two decisions of this court (to which we will refer) he concluded that the only difference between a count under s.20 and a count under s.18 was the intention of the appellant; that only made a difference by imposing a higher burden on the prosecution. The appellant’s position was unaffected.[14]At the close of the prosecution case a further application to which we have referred was made on the basis that counsel for the appellant was unable to call any evidence and because of the failure to arraign. The judge ruled that he had already dealt with the failure to arraign and the reason why no evidence could be called was the defendant’s absence.[15]Arraignment has long been considered a basic element to a criminal trial by judge and jury. For example, in Ellis (1973)57 Cr. App. R 571 the Court of Appeal Criminal Division presided over by Edmund Davies LJ set aside a conviction for burglary based on a plea of guilty by the defendant as the plea had been made through counsel and not by the defendant personally. However, in a case shortly thereafter, R v Williams (1976)64 Cr. App. R 106, the court concluded that the position was not as rigid or inflexible in relation to a plea of not guilty. In the course of its judgment, after setting out the historical origin of arraignment and some of the consequences described by Sir James Fitzjames-Stephen in his History of the Criminal Law of England (at page 297-8 of the 1883 edition) on failing to plead correctly on arraignment, the court observed:
“The dire consequences of non-observance of the ritual in pleading not guilty no longer threaten a person accused in an indictment. Insistence on an express plea of not guilty by the defendant himself is no longer a necessary safeguard of justice where that is the intended plea and where the ensuing proceedings are precisely what they would have been if the accused had himself made the plea in plain terms.”
The court then went on to consider the extensive research put forward by counsel on behalf of the prosecution in that case and in particular a passage from volume 22 of the Corpus Juris Secundum (1961) which set out the operation of the principle of waiver in relation to arraignment on an indictment. The court concluded that the law of the United States as set out in the Corpus Juris Secundum was consonant with both the law of England and with good sense. It concluded that therefore the principles of waiver applied to the making of a plea on arraignment.[16]It was submitted by counsel for the appellant that the court in Williams had only considered the failure to arraign was excusable because the defendant in that case had been present throughout and the intended proceedings were precisely the same as they would have been had he been arraigned and pleaded not guilty. It was submitted in the present case it could not be inferred that the appellant would have made the same plea; he might have reviewed his position in relation to the plea of not guilty he had made to the s.20 offence (as not infrequently happens when a count under s.18 is part of the indictment). In the circumstances of the present case, because of the appellant’s previous convictions he was at risk of imprisonment for public protection if convicted under s.18 and he might therefore have changed his plea to s.20. Furthermore, the trial did not take precisely the same course as it would have taken had he been present and arraigned because he had not been present for the balance of the trial.[17]We cannot accept this submission. The decision in Williams was based on the principle of waiver. In our view the issue in relation to the arraignment is one of waiver and is to be determined by precisely the same principles of waiver as are applicable in relation to proceedings in the absence of the appellant. These principles were discussed by the House of Lords in Jones; there is a helpful analysis of the speeches in [2002] Crim LR 554. In O’Hare [2006] EWCA Crim 471, the position was summarised for the purposes of that decision as:
“An analysis of the speeches in the House of Lords points to the conclusion that, if waiver is to be established, then knowledge of, or indifference to, the consequences of being tried in his absence and without legal representation would have to be proved.”
This is also a sufficient summary for the purposes of the present decision, as it is not disputed that the appellant knew of the intention to add the count in relation to the offence under s.18.[18]It is clear on the facts of this case: i) The appellant knew that the trial would go ahead in his absence if he did not appear. ii) The appellant knew of the intention of the prosecution to seek to amend to add a count under s.18; we infer that he must have been advised that there was no prospect of successfully resisting this. iii) There is no explanation of his failure to appear. The only inference that the court trying him could draw was that he had deliberately absented himself when he appreciated the serious consequences that would follow from his conviction. iv) It is clear that if there had been an explanation for this failure to appear, then this would have been put forward as an explanation to this court which, as happened in O’Hare, would have considered that explanation so that this court could determine whether the proceedings as a whole had been fair and in conformity with Article 6. No explanation has been put forward. v) The fact that the appellant had had no opportunity to reconsider his plea to the count in respect of the offence under s.20 was entirely of his own making. We can infer, as it is a matter of common practice, that he must have been advised that this was an option open to him in this case. He knew that he could, by appearing, have pleaded guilty to the offence under s.20, but decided to absent himself. The fact that he was not in court to plead under s.20 was a matter entirely flowing from his own decision to absent himself. vi) It is clear that the judge properly balanced the considerations relating to the proceedings in this case in accordance with the principles set out in Jones and in the jurisprudence of the European Court of Human Rights.[19]It is clear in our judgment therefore that the judge was right to reject this submission; for the reasons set out the appellant waived his right to an arraignment under the count in respect of the offence under s.18, just as he had waived his rights in respect of his attendance at the trial. (2). The decision of the judge on the scope of cross examination[20]The importance of legal representatives being able to put the case of a defendant who was absent was summarised at paragraph 34 of the judgment in O’Hare :
“The attendance of legal representatives who had received instructions at an earlier stage provide, as Lord Bingham made clear at paragraph 15, a valuable safeguard and would, for the reasons we have given, have done so in the circumstances of the present case.”
[21]In this case, as instructing solicitors had continued their instructions to counsel, his duty, so far as the Bar Council Rules provide, was set out in paragraph 15.3.2 of the Bar’s Written Standards for the Conduct of Professional Work. “15.3.2 If for any reason the barrister’s professional client does not withdraw from the case, the barrister retains an absolute discretion whether to continue to act. If he does continue, he should conduct the case as if his client were still present in Court but had decided not to give evidence on the basis of any instruction he has received. He will be free to use any material contained in his brief and may cross-examine witnesses called for the prosecution and call witnesses for the defence.”[22]The position therefore was that as counsel had decided to continue to conduct the case, he was entitled under the Rules to conduct the case on the basis of the instructions he received and on the basis that the client had decided not to give evidence. We consider paragraph 15.3.2 correctly sets out the duty of counsel; his right, in accordance with the duty, to cross examine was an important safeguard to the fairness of the trial to be conducted in the absence of the appellant.[23]During the course of the cross examination of Mr Bones, the judge interrupted counsel’s cross examination when he was suggesting to Mr Bones that he knew the appellant as he had had an argument with him three weeks before. The judge asked counsel on what basis he was putting the question; counsel responded that he would answer in the absence of the jury. The judge then asked the jury and Mr Bones to retire whilst he ruled on an issue of law. The following exchange then occurred. “Mr. de la Poer: Your Honour, I have clear instructions on this point, and I appreciate that, whilst evidence will not be given positively to assert it, because the defendant is not here, in my submission I am entitled to ask this witness what I have clear instructions on, and the witness can either agree that it happened or it did not, and that will be the evidence in relation to that incident. “The Recorder: providing the questions are not put in such a way as to incorporate into them the evidence which you would have wished to have called had it been available, that must be right. You are entitled to ask him, “Did you have a dispute, a fight, with Kepple the week before?”, but I thought we had best deal with this immediately. The questions cannot be put in any significant detail, because to do so would be to be putting your instructions, and those instructions count for nothing in the absence of evidence. “Mr. de la Poer: Well, if I have made a mistake, then --- “The Recorder: That is why we are discussing it at this stage. “Mr. de la Poer: Yes, of course. That was not my understanding, but if your Honour directs that, then I shall proceed on that basis. “The Recorder: Do you suggest that I am wrong? “Mr. de la Poer: I had been proceeding on the understanding that I was able to put my instructions, although they will not be repeated in evidence, and that the witness can contradict them or agree with them. “The Recorder: Mr. Worsley? “Mr. Worsley: Your Honour, my understanding would be that my learned friend is entitled to put a hypothesis to the defendant (sic), but then the rule of finality would apply, so after a simple denial, “Well, no, that didn’t happen, there was no argument”, that is it, “I didn’t know him”, that is it. “The Recorder: You need to be restrained as to the detail which goes into the questions. “Mr. de la Poer: Yes.”[24]The effect of the judge’s ruling appeared to be that he was forbidding counsel to ask questions which incorporated into them detailed factual suggestions based on what the appellant might have said had he gone into the witness box – that is to say putting the detail of the appellant’s account of what had happened, but without attributing it to the appellant. The judge expressed this in terms that counsel for the appellant could not put questions to the witnesses in any significant detail based on the appellant’s account of events.[25]It clearly would have been impermissible for counsel to put questions in terms which suggested what the appellant’s evidence would have been, as counsel knew that the appellant would not be giving evidence as he had absconded. But that did not mean that he could not have asked questions in as much detail as he considered proper and prudent based on the instructions he had been given. The distinction is well known as is illustrated by both standard texts – Archbold at paragraph 8-116and Blackstone at paragraph F7.8 respectively:
“An advocate must not in the course of cross-examination state matters of fact or opinion, or say what someone else has said or is expected to say. Defending counsel on occasion break this rule by saying, e.g. "the defendant's recollection is" or "the defendant will say" or "my instructions are that ... ." The time to make such statements is in an opening speech, not in cross-examination. Nor is it permissible to evade this rule by putting the statement in the form of a question, e.g. "What would you say if the defendant were to say?"” “Counsel should not state what somebody else has said or is expected to say. The time for statements such as 'The defendant's recollection is … ' or 'The defendant will say … ' is the opening speech; such statements should not be made, or put in the form of a question, in cross examination (Baldwin (1925) 18 Cr App R 175, per Lord Hewart CJ at pp. 178–9).”
[26]The judge’s ruling was, in our view, wrong in law. Neither counsel in the appeal could refer us to any authority that supported it. Counsel for the appellant thought that it might have been based on the position set out in R v O'Neil (1950) 34 Cr App R 108 and R v Campbell (1979) 69 Cr App R 88 (as modified in the manner set out at paragraph 8-121 of Archbold), but we do not think it can have been.[27]In our judgment, counsel for the appellant was entitled to ask questions of witnesses for the prosecution in as much detail as he wished based on his instructions, but without indicating what the appellant’s evidence might have been and in the knowledge that he would not be able to call evidence to contradict the answers given. He was entitled to conduct cross examination on this basis in the hope of either showing that his absent client’s instructions were accepted by the witnesses or casting doubt upon the coherence or accuracy of their accounts. The ruling, however, had the potential effect of preventing counsel doing this. If it in fact did so, then it rendered counsel’s presence at the trial largely nugatory and removed the valuable safeguard provided by that attendance to put the appellant’s case based on his instructions. Although this was a case that in the circumstances could properly, as the judge had found, be tried in the absence of the appellant, the effect of the ruling could be thereby to deny the appellant the right to a fair trial which the common law afforded him and which was guaranteed by Article 6.[28]We therefore turn to consider whether the ruling had that effect in the light of the submission by counsel for the appellant that there were two areas in which his cross examination had been significantly curtailed: i) As regards Mr Bones, there were two issues that were to be explored. a) Cross examination of Mr Bones on his denial that he knew the appellant; counsel’s instruction were that Mr Bones knew the appellant. b) The mechanics of the fight between the complainant and the appellant. Counsel said that he wished to suggest to Mr Bones that the fight had occurred in a different way to that which he had described. He wished to rely on the damage shown in the police photographs to the tiles of the toilet and the blood stains to support the detailed account he wished to put. ii) The cross examination of Miss Greenwood was more generalised and less specific than it would otherwise have been.

Conclusion

[29]We have carefully considered the cross examinations of Mr Bones and Miss Greenwood in the light of this submission. It is sufficient in our view that the cross examination of Mr Bones demonstrates that from the point at which the judge intervened, the questions asked in relation to Mr Bones’s knowledge of the appellant stopped. Much more striking was the brevity of the cross examination of Mr Bones as to what happened in the toilet; there was none of the detail we would ordinarily have expected and no reference to the damage to the tiles or to the blood stains. Counsel merely suggested that it was Mr Bones who wanted the fight, he started it, he was the aggressor for most of it and came off worst. It is quite clear to us that the judge’s ruling did have the effect which it had the potential of causing. It denied the appellant’s counsel the opportunity to cross examine the witnesses for the prosecution in the manner in which he would have wished.[30]Accordingly, although the judge was entirely correct in the view that this was a case which could quite properly be tried in the appellant’s absence, the unfortunate effect of his ruling on the scope of cross examination was to curtail the right of the appellant through counsel who was present at the trial to challenge the evidence against him; the appellant was, in these circumstances, denied the fair trial provided for by our common law and guaranteed by the provisions of Article 6. The conviction cannot therefore be safe.

Cited in 1 later judgment