Collins & Ors, R v [2007] EWCA Crim 854

[2007] EWCA Crim 854Case No 200600875 C5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 th April 2007
Before
LORD JUSTICE GAGEMR JUSTICE WALKERMR JUSTICE OPENSHAW
Between
RCrownCollins & OthersDefendant
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Neil Davey QC and Peter Johnson for CrownJames Hill QC on behalf of Michael CollinsWilliam Lowe QC on behalf of Colin ThreadgillAndrew Rutter on behalf of Peter Alan MorrisonJohn Aspinall QC on behalf of Bronson TyersHearing Hearing dates: 28 and 29 March 2007Judgment
[1]On 24 January 2006 at Teesside Crown Court the appellants, Michael Collins, Peter Morrison, Colin Threadgill and Bronson Tyers were convicted by majority verdicts of 11 – 1 of conspiracy to kidnap (count 1) and conspiracy to blackmail (count 2). They were sentenced as follows: Morrison and Tyers to 12 years imprisonment on each count concurrent, Collins and Threadgill, 9 years imprisonment on each count concurrent. In addition Morrison pleaded to possessing prohibited weapons (counts 3 and 5) and was sentenced to 5 years and 2 years imprisonment on each count concurrent and concurrent with the sentence of 12 years. A count of possessing prohibited ammunition against Morrison (count 4) was left on the file. There were two co-accused, Shaun Richardson who was found not guilty of all counts by direction of the judge and William Teal who was acquitted by the jury of all counts which he faced. These appellants appeal against conviction by leave of the single judge.

The evidence at trial

[2]Much of the factual evidence was not in dispute. At approximately 2.15pm on Monday 8 March 2004 Anthony Pattison drove his Vauxhall Vectra motor car onto an old fairground car park at Seaton Carew. He parked his car next to a red Vauxhall Corsa which was already there. Collins was sitting alone in the driver’s seat of the Vauxhall Corsa. The two men spoke to each other through their open drivers’ windows. In evidence Anthony Pattison said that this was an innocent chance meeting. Shortly after they met, another vehicle drove into the car park and blocked the two parked cars from leaving. A witness noticed people moving between the various vehicles. Anthony Pattison said that the men indicated they were Customs Officers. He said they grabbed him and threw him into the van where his wrists were tied and tape stuck over his eyes. He alleged that he was threatened by a man with a Geordie accent and a gun held to his head. He realised that Collins had been thrown in to the van beside him. He was told that he had been kidnapped and that his family must pay for his release.[3]Anthony Pattison described how he and Collins were driven some distance before being taken to some form of industrial premises where they were separated. He said that he was held at those premises and restrained as before. He said that there came a time during the afternoon when he was forced to speak to his brother Jonathan Pattison on a mobile telephone which was held to his face. Jonathan Pattison said, when giving, evidence that the telephone call came from a man with a Geordie accent. This man threatened that Anthony Pattison would be harmed if money was not forthcoming to secure his release. Jonathan Pattison said that he then spoke to his brother who confirmed that he had been kidnapped. Jonathan Pattison said that he received this telephone call at approximately 5.30pm on 8 March. i) During the late afternoon and early evening of 8 March 2004 further calls were made to Jonathan Pattison. He said that the demands for money were reiterated and he was told not to go to the police. His evidence was that he was shocked and afraid. He prevaricated for some time before contacting his other brother, Alan Pattison. Jonathan and Alan Pattison said that they spent the late evening driving up the A19 to Tyne Tunnel and back again to Hartlepool for no clear reason other than the fact that the ransom demand had been made by a man with a Geordie accent. They felt that if their brother was released it would be in that area. They said that throughout that drive there were further telephone calls made by the kidnappers reinforcing their demand.[4]On their return to Hartlepool Alan and Jonathan Pattison said they met a man named Carter. He drove Jonathan Pattison around Hartlepool for a time. Carter said in evidence that his meeting with Jonathan Pattison was not pre-arranged. He maintained that he had driven Jonathan Pattison around the town because they had nothing else to do and there was no mention of any problems concerning the Pattison family.[5]At approximately 12.15am on 9 March 2004 Jonathan Pattison attended Hartlepool Police Station and reported that he had received telephone calls indicating that his brother had been kidnapped and was being held against his will at an unknown location. Thereafter his mobile telephone was monitored and the content of the calls recorded. In the course of those telephone calls a ransom was agreed in the sum of £25,000. It was agreed that the money would be left in a vehicle at Wolviston Service Station on the A19. Jonathan Pattison had refused to bring the money to the Newcastle area. By this stage Jonathan Pattison’s actions were being orchestrated and monitored by the police.[6]At about 4.40pm on 9 March Collins’ girlfriend, Wendy Dees, reported to the police that she had received telephone calls the day before to the effect that Collins had been caught up in a kidnap by kidnappers who were really after Anthony Pattison. She had been told not to worry. She said that Collins asked her to arrange to recover his car which he had left at the car park. She said she had done this later that afternoon with the help of a friend of Collins, William Teal. She said she had received further reassuring telephone calls from Collins but since he had not returned home by the morning, she had gone to see Alan Pattison to ask what was happening. Alan Pattison had confirmed that Anthony had been abducted and informed her that Jonathan Pattison had gone to the police. She said she had been advised to do the same.[7]At about 7.20pm on 9 March a white Ford Transit van was seen to drive into the car park of the Holiday Inn. Its driver was Collins and after a number of failed attempts he was observed to recover the ransom money from a vehicle which had been left there and then drive off in the van. He was kept under observation as he drove, apparently aimlessly, around the Stockton, Yarm and Stokesley area. Throughout this time Collins made telephone calls by mobile telephone and from public call boxes. He contacted Wendy Dees and Dees contacted the police. Collins spoke to the police on the telephone and said that he was being used by the kidnappers to recover the money against his will. He feared that he was being watched. He carried on driving about and was eventually arrested in possession of the van, the money and a mobile telephone at about 10.45pm in the Stokesley area. The concluding four digits of the mobile telephone found in Collins’ possession were 1133.[8]Meanwhile, police officers observed Anthony Pattison walking along the A689 towards Hartlepool from the general direction of the Samsung factory from which he subsequently said he had been released. He was seen to enter a garage at Wolviston Services and attempt to use a public telephone kiosk there. At 9.15pm he was picked up by members of his family who in due course took him to Hartlepool police station. He complained at the police station that he had been kidnapped, kept in premises overnight, driven around the following day in what he believed was the Newcastle area, before being driven south. He said that he had been released from a hut at farm premises near the Wolviston Services. He later identified the hut as being at Woodside Farm, Wynyard near the Wolviston Service Station. He was unable to identify any of the men involved in his abduction.[9]Following the arrest of Collins police officers were able to examine billing records and call data taken from Collins telephone, number 1133. From this material the prosecution alleged that cell site analysis implicated ten mobile telephone numbers which it was alleged were involved in the kidnapping. Attribution of the telephone numbers was ascribed to Collins (1133), Teal (8835), Threadgill (4517 and 7289), Richardson (9902), Tyers (8980), Morrison (3951 and 2184), and two unknown users (9783 and 8146). At trial Collins, Teal and Morrison admitted the telephone numbers attributed to each of them. Threadgill and Tyers denied being in possession of any of the telephone numbers attributed to them.[10]There was evidence of various items collected by the police from Woodside Farm and voice analysis of the ransom demands attributed to the voice of Morrison. Underwear bearing traces of Morrison’s DNA was recovered from Woodside Farm. Guns and ammunition were recovered from Morrison. One gun had a superficial similarity to the gun described by Anthony Pattison as being involved in the kidnapping.[11]Following arrest each of the defendants was interviewed. Collins, was at first released, but later interviewed at his own request. He said that the Pattisons were large scale contraband cigarette dealers and that he had worked for them in this capacity. He said that the meeting in the car park had been in furtherance of this activity and he had passed nearly £9,000 to Anthony Pattison before the attack. He maintained that the kidnap had been genuine and he had been as much a victim as Anthony Pattison. His case at trial was, contrary to what he had said in interview, that the kidnap was a sham and a plot devised by the Pattisons to “rip off” a gang of Manchester cigarette smugglers to whom the Pattisons owed money.[12]At interview Morrison declined to answer questions about his knowledge of the offences, his use of the telephones and his relationship to his co-accused. In respect of the weapons and ammunitions seized from his home he gave an explanation as to how they came into his possession. His case at trial was the same as Collins’ case. He accepted that he had taken part in the “kidnap” and admitted that it was his voice which had been recorded by the police. But it was alleged on his behalf that it was a charade for the reasons asserted on behalf of Collins.[13]Threadgill, at interview, denied any knowledge of the kidnap. He denied any attributed use or knowledge of the telephones 4517 and 7289. He said that he did not know Collins but knew Teal. He admitted knowing Richardson through an illegal trade in counterfeit clothing. He was unable to give any telephone number for Teal or Richardson and he said that his new mobile telephone number ended in 401. His case at trial was the same as at interview.[14]Tyers made no reply to all questions asked of him at interview. His case at trial was that he took no part in the alleged kidnap and blackmail but in any event relied on the suggestions made by Collins and Morrison that the kidnap and blackmail was a sham.[15]In summary, the case for the prosecution against each of these appellants, based principally on the mobile telephone evidence, was as follows. It was alleged that Collins had been the “bait” used to lure Pattison to the isolated car park where he was kidnapped. It was alleged that Collins was known to Anthony Pattison and on his own account had telephoned him and arranged the meeting. It was alleged that it was necessary in the course of the organisation of the kidnapping for Collins to appear to be taken in since otherwise Anthony Pattison would be able to identify him as a participant in the offence.[16]The prosecution alleged that Morrison matched the description given by both Anthony Pattison and Collins as that of the kidnapper who had been armed with a gun. His presence at Woodside Farm was evidenced by the underwear found there on which there were traces of his DNA. His possession of a handgun upon arrest and the identification as his voice as the recorded voice making ransom demands dictated the role ascribed to him. According to the prosecution, and in due course, upon his own admission, he was one of those physically involved in the seizure of Pattison from the car park at Seaton Carew and the person subsequently making the ransom demands.[17]The prosecution alleged that Tyers was the user of the telephone 8980. That telephone number was the only number to have demonstrated contact with Morrison. It was also shown to be co-located with Anthony Pattison’s telephone (0740) throughout the period which he was being held to ransom. In particular the two numbers were co-located at the time Anthony Pattison claimed that he was being driven around the Newcastle area when calls from the kidnappers were made to Jonathan Pattison seeking to arrange to have ransom monies brought up to Newcastle. The prosecution alleged that Tyers was an organiser of the conspiracy.[18]Threadgill was alleged to be the user of telephone 4517 which was said to be the hub of communications between Tyers on the one hand and Collins, Teal and Richardson on the other. The prosecution said that in essence Threadgill was the conduit between the organiser, Tyers, and the Geordie man, Morrison, both of whom were moving about the North East with the kidnap victims seeking to secure the ransom, and the foot soldiers left in Hartlepool playing their lesser but crucial roles.[19]It is unnecessary for the purposes of the appeal to outline the case against Teal and Richardson.

The course of the trial

[20]In their witness statements made for the purposes of the prosecution case Anthony, Jonathan and Alan Pattison asserted that they and their family were men of good character engaged solely as successful and legitimate business men in the building trade. They expressly stated that they were unaware of any reason for them being targeted as potential victims for kidnap and blackmail. In one of his witness statements Anthony Pattison said:
“I have never been involved in criminal activity or avoiding VAT payment or any extra-marital affairs that may have led to this incident.”
[21]Similarly Jonathan Pattison asserted in a witness statement:
“I have been asked by the police if I can think of any reason why anyone would want to kidnap me. I have been thinking about if for the last few days. I cannot think of any reason why anyone would want to kidnap me. I have not had any crossed (sic) words with anyone in business. There are no business issues that I have had with anyone. I have no personal reasons why anyone would want to kidnap me, either for revenge or jealousy …I am totally in the dark as to why anyone would want to take me. Tony to my knowledge has not got any enemies. I have been asked if there are any reasons why I can think of why Tony was taken. I would like to state that I do not have any knowledge of Tony being involved in any dealings in selling tobacco. I am not involved in this.”
[22]In October 2005 the prosecution made a PII application on notice to the judge. As a result of a ruling by

the judge on 11 October 2005 the prosecution made the following admission:

“The Crown admits that in addition to the information already disclosed there is reliable intelligence that the witnesses Anthony Pattison and Jonathan Pattison are involved in the sale of contraband cigarettes and other such goods together with money laundering from such sales on a large scale.”
[23]On a day either just before the trial was due to start or on the day the trial started the prosecution made a further PII application. As a result of that application the judge ordered the prosecution to disclose specific material in redacted form for the purpose of enabling defence counsel to cross-examine Anthony and Jonathan Pattison on credibility. Amongst the admissions made by the prosecution as a result of this hearing were facts which disclosed that Jonathan Pattison on four separate occasions, the last of which occurred on 28 October 2003, was stopped by officers of HM Customs and Excise and found to be in possession of substantial quantities of cigarettes, hand rolling tobacco and cash.[24]At the outset of the trial leading counsel for Tyers made an application to the judge to stay the trial as an abuse of process. His submissions were adopted by all defence counsel. The judge refused the application for reasons set out in a transcript of his ruling dated 10 November 2005.[25]In the course of the trial Anthony and Jonathan Pattison were each subjected to extensive cross-examination about their involvement in criminal activity. It was suggested to them that they were involved in the business of selling contraband cigarettes, tobacco and other goods together with money laundering the profits on such sales. It was further suggested to the Pattisons that Jonathan Pattison owed money to a criminal gang from Manchester for the delivery of a load of contraband goods for which he could not pay and that the kidnap was a charade organised by the Pattisons to provide an excuse for not paying or delaying payment of the debt due to the Manchester gang. Both witnesses denied that they were involved in any criminal activity or that the kidnap and blackmail incident was a sham.[26]On 5 December 2005, after both Anthony and Jonathan Pattison had completed their evidence leading counsel for Tyers applied to the judge for both witnesses to be recalled for further cross-examination. The reason for the application was that since they had given evidence further telephone evidence had come to light which it was contended supported the allegation that the kidnap was a sham. In the course of leading counsel’s submissions the judge intervened. The following exchange took place:
“The Recorder: The pattern is clear and the inferences are clear… Mr Aspinall: Yes The Recorder: … and if there was any credibility yet to be reduced I would permit it but I have to say… Mr Aspinall: No. Well, I understand that, my lord… The Recorder: I do not see how the picture could become clearer.”
Mr Aspinall: Yes

Mr Aspinall: No. Well, I understand that, my lord…

[27]Shortly after this exchange the court adjourned for lunch. On the resumption Mr Aspinall QC sought to renew his application. In the course of his submissions Mr Aspinall told the judge that if the court should subsequently rule that there was not sufficient evidence to go to the jury the prosecution had indicated to him that it would seek to appeal such a ruling under s.58 of the Criminal Justice Act 2003. In the result the application was left to lie in “abeyance”. Subsequently Mr Aspinall informed the judge that the prosecution could not appeal a ruling that the defendants had no case to answer as s.58 had not come into effect for the purposes of this trial.[28]On 3 January 2006 the application to recall the Pattisons for further cross-examination was renewed. In his ruling of that date, the judge said that the telecommunications material had been adequately put and that the jury “…have had adequate, if not more than adequate, opportunity to assess the credibility of the witnesses who are the subject of this brief application…” He refused the application.[29]On 10 January 2006 the prosecution closed its case. The proceedings then took an unusual course. In the absence of the jury, before the adjournment for lunch, the judge said to prosecuting counsel that immediately after lunch he proposed to inform the jury of their “common law right to end the case”. Prosecuting counsel asked to be permitted to address the court and enquired of the judge why he was proposing to take what counsel described as an “extraordinary” step. The judge responded that it was not extraordinary and he was not to be “interrogated further”. Accordingly after the break for lunch the judge, in a short direction to the jury which we are informed lasted approximately 20 minutes, directed them that they could exercise a common law right in them to stop the case. The jury retired and on their return, through the foreman, informed the court that “we wish to hear more”.[30]On 11 January 2006 counsel for all defendants asked the judge to rule that there was no case for their clients to answer. The basis for the application was that the credibility of Anthony and Jonathan Pattison had been destroyed. The judge rejected the application in respect of all the defendants save Richardson in respect of whom the judge directed the jury to acquit of all charges. Following this ruling, renewed applications were made on behalf of the five remaining defendants to recall the Pattisons for further cross-examination. The judge refused these applications whereupon applications were made for the judge to discharge the jury. These applications were also refused. The trial continued and no evidence was called by any of the defendants. Following speeches and the summing-up the jury convicted these appellants.

The grounds of appeal

[31]The appellants appeal with leave of the single judge on a variety of different grounds only one of which is common to all of them. For the sake of simplicity, where necessary, we shall refer to these grounds by the numbers and headings ascribed to them in the respondent’s skeleton argument. At the end of the hearing we informed the parties that the appeals against conviction would be allowed and the convictions quashed. We directed a retrial. In view of this it is unnecessary for us to refer to the grounds on which leave to appeal was refused. None of these grounds featured to any extent in the oral submissions.[32]The one ground of appeal which is common to all four appellants is a criticism of the judge for informing the jury at the close of the prosecution case that they had the right to acquit the defendants if they regarded the evidence of Anthony and Jonathan Pattison as incapable of belief. It is submitted that this amounted to a material and irreparable irregularity rendering the verdicts unsafe.[33]The second ground of appeal concerns the judge’s refusal to rule that there was no case for the defence to answer and direct the jury to acquit. This ground is common to Collins, Morrison and Tyers.[34]A third ground of appeal is raised by Collins, Morrison and Threadgill. By this ground these three appellants criticise the judge’s direction to the jury concerning the functions of the judge and the jury.[35]There are further grounds of appeal which are specific to individual appellants. Two concern Collins; two concern Tyers and one Morrison although this latter ground was not pursued by Morrison before us. We shall deal with these grounds where necessary individually following our conclusions in respect of the grounds which are common either to all four appellants or at least three of them. We should add that some of the individual grounds overlap with different grounds raised by other appellants. Where this occurs and the ground is capable of affecting the safety of the convictions of all of the appellants Mr Davey QC representing the respondent very properly accepted that we should deal with such a ground as if it was raised in all the notices of appeal.

Grounds 1 and 2

[36]Threadgill does not advance ground 2, but as advanced by counsel for the other three appellants it is a general ground of appeal and is intimately connected with ground 1. Accordingly we propose to deal with it as if it was advanced by all of the appellants. Mr Aspinall QC for Tyers, advanced these grounds on behalf of Tyers and counsel for the other appellants adopted his submissions.[37]We have already recited the exchanges between the judge and counsel that took place before the judge gave a direction to the jury on the afternoon of 10 January 2006 in which he explained to the jury its right to stop the case. A certain amount turns on the observations of the judge when giving these directions. In the circumstances, it is necessary for us to cite passages from them.[38]The judge started by explaining to the jury that the close of the prosecution case marked a significant stage in any criminal trial. He said:
“It is the point where the prosecution is saying, in effect, “We have now put before you, the jury, evidence upon which you can be sure of the guilt of each of the defendants in this case and upon each of the charges in the indictment”
. That is what he is saying. This point in the trial is what I was referring to when I said to you before we broke for the Christmas holiday, do you remember, when I referred to there being an opportunity for stocktaking, for reviewing the state of the evidence. Now, on such an occasion that stocktaking may be done by the jury, it may be done by the judge. It may, and please note my use of the word “may”, need to be done by both judge and jury in turn, but if that last need arises in this case, it would, in fact, be the other way round, that is to say, you the jury first and then, depending upon your decision and if then necessary, by me, the trial judge, and I will tell you why it will be in that order in a moment.”[39]The judge went on to explain the different functions of a judge and jury in a criminal trial. He continued:
“So, let me make it perfectly plain, in leaving you a decision to make in a moment or two, which I will, I am not inviting you to do one thing or another. What I am going to do is to tell you of your common law right as a jury in a criminal trial such as this to tell you what decision is open to you and then I am going to say, “Go and consider whatever decision you wish to make”, and I am going to go no further than that. In the present circumstances your decision needs to be made first – and this is the reason that I said I would come to in a moment – your decision needs to be made first as it would affect all the defendants in this case. You see, any decision of law which I might subsequently have to make would be with regard to an individual defendant, in a phrase, whether he has a case to answer, and that is why your general decision needs to be made before there is any individual question of law for me to decide and, as I have already said, depending upon your view of the evidence, no such question may then arise for me to decide. So, you, the jury, can take stock of what you have heard to date and you can reach either one of two decisions. Let me make it plain, I am not at this stage talking about a choice between guilty or not guilty. The choice which I am going to leave for your decision very shortly when I have explained it a little more fully is either for you to say that you’ve heard enough of this matter and that there is no way that you could be sure of the evidence that you’ve heard that there was a genuine kidnap of Anthony Pattison and holding him to ransom, or, on the other hand, to say that before being prepared to reach such an opinion you would wish to hear whatever evidence, if any, might be put before you on behalf of any of the defendants, and if that were to happen it would be followed by speeches on behalf of the prosecution and each defendant. So, in a nutshell your decision this afternoon is to be either not guilty generally or that you want to hear more. You might like to make a note of that so that you don’t overlook the important distinction which I am drawing, either not guilty generally or you would like to hear more.”
[40]The judge then explained that the jury could not at that stage find any of the defendants guilty. After a few more general comments he said:
“So, essentially, the question for you shortly is whether on the evidence you have heard you could be sure that there was a genuine kidnap and a holding to ransom, and it is immediately obvious, isn’t it, that in this case depends crucially upon the credibility of Anthony and Jonathan Pattison, not exclusively but certainly crucially. They are key witnesses in this question, aren’t they?”
[41]These passages are followed by the judge referring to a number of particular questions which he said the jury might find it useful to answer when making the decision to return verdicts of not guilty or asking to hear more. In respect of Anthony Pattison’s evidence he set out five questions the answers to which he indicated might help the jury on the issue they had to decide and four questions in respect of Jonathan Pattison’s evidence. He went on to invite the jury to consider whether these two witnesses had been frank and honest when denying that either had anything to do with contraband cigarettes and money laundering. He reminded the jury that “significantly” each had said that he had not the slightest idea why anyone would want to kidnap Anthony and referred to the possibility of inter-gang warfare and a “scam by one gang on another”.[42]Finally, the judge explained to the jury what course the trial would take if one or other of them wished to hear more. He reiterated that he might then have to decide whether there was a case to answer for any one of the defendants and added that if he found that there was, there was an opportunity for each defendant to give evidence if he so wished. It would appear that in this passage of his directions he was endeavouring to give the jury some indication of how long they might expect the trial to continue in the event that they wanted to hear more.[43]Mr Aspinall submits that the course adopted by the judge amounted to a material irregularity which was irreparable. He further submits that the judge ought to have taken the responsibility himself to stop the case on the well-known “Galbraith” principles. Finally in respect of these two grounds of appeal he submits that because the judge’s error was irreparable he ought to have acceded to an application to discharge the jury.[44]Mr Aspinall submits that the common law right of a judge to inform a jury that it can stop a trial at the close of the prosecution case cannot survive the coming into force of the Human Rights Act 1998. In particular he argues that the course adopted by the judge in this case breached the appellants’ Article 6 rights in that it did not allow for any speeches by defence or prosecuting counsel or appropriate directions from the trial judge. As such the trial was unfair to both the appellants and the prosecution. Mr Aspinall also relies on three decisions of this court, to which we shall refer, in support of a submission that the practice of a judge informing a jury that it can stop a case has been disapproved for many years.[45]Mr Davey QC, for the respondent, submits that the right of a judge to inform a jury of its common law right to stop a case still survives. He also relies on the three authorities referred to by Mr Aspinall. However, in the course of argument, whilst endeavouring to explain why the judge took the course he did, Mr Davey conceded that the judge was not justified in taking this step. As we have already said Mr Davey had sought to persuade the judge not to take this step and referred him to the most recent authority disapproving the practice. But he submits that this error does not affect the safety of the convictions.[46]Before dealing with the detail of these submissions as they relate to this ground of appeal we must deal with the point of principle raised in Mr Aspinall’s submissions. We start with the three authorities. In R v Falconer-Atlee (1973) 58 Cr. App. R.348. The court said:
“… The learned judge, having ruled that there was evidence to go to the jury, went on almost to invite the jury to stop the case. This court has repeatedly said in recent years that this practice should not be followed. If a judge thinks that the case is tenuous, then, even though there is some evidence against the accused person, the judge, if he thinks it would be unsafe or unsatisfactory to allow the case to go to the jury even with a proper direction, should take upon himself the responsibility of stopping it there and then. If the judge is not prepared to stop the case on his own responsibility, it is wrong for him to try and cast the responsibility of stopping it on to the jury. In this case the jury declined to take the hint the judge offered.”
This court in R v Kemp [1995] 1 Cr. App. R. 151 made similar comments. After referring to a passage in Archbold (the 1993 edition) which criticised the above passage in Falconer-Atlee and stated that the right of a jury to acquit an accused at any time after the close of the case for the prosecution was well established at common law, the court went on to refer to Falconer-Atlee and said of the passage in Archbold:
“We, for our part, do not agree with the suggestion that what Roskill L.J. had to say in Falconer-Atlee should be ignored. We do not think it will always be very easy to distinguish between an invitation to acquit and a mere intimation of a right to stop the case. In this particular case we have no difficulty in concluding on the words used by the judge that it was an invitation to acquit, but it may not always be easy to differentiate between the two.”
Moreover, a jury may well use their common sense and read a mere intimation that they have a right to stop a case as an invitation to acquit, on the basis that a judge is not likely to be giving them the intimation unless he thinks they should acquit. If a judge is going to do anything of this sort, and we do not encourage it, he should clearly, in our judgment, not go beyond a mere intimation of the right to stop, for fear that if he goes further and utters a clear invitation to acquit, the result may be as in the present case, leaving a convicted defendant with a grievance, however unjustified.” In Kemp the court found that despite the judge’s error of informing the jury of its right to stop the case the verdict was nevertheless safe.[47]Finally this court in R v Speechley [2004] EWCA Crim 3067 in robust terms disapproved the practice of a judge informing the jury of its right to stop the case. Kennedy LJ giving the judgment of the court, said:
“We accept that in some cases judicial silence may mean that a trial lasts longer than it need because, for example, the strengths or weaknesses of the prosecution evidence may depend upon the view to be taken of a witness’s reliability, and the judge cannot therefore accede to a submission of no case to answer simply because he regards the key prosecution witness as unreliable (see R v Gailbraith (1981) 73 Cr App R 124), but it is worth remembering that in an exceptional case a judge can consider a submission of no case to answer, or decide of his own motion that there is no case to answer, as late as the close of the defence case, as was pointed out in R v Brown [2002] 1 Cr App R 46. We therefore find it difficult to envisage any circumstance where in reality it will be appropriate in the interests of justice for a judge to invite the jury to acquit. Experience shows that when such invitations have been issued in the past they have all too often led to difficulties.”
[48]On the basis of these authorities we find it difficult to hold that the common law right of a jury to stop a case after the close of the prosecution case no longer exists. We think it strongly arguable that it cannot survive Article 6 but it is possible to envisage circumstances in which the jury could be reminded of this right in such a way as not to breach Article 6. However, in our judgment it is clear from the authorities that the practice of inviting a jury to exercise such a right has been comprehensively disapproved. At the very least it could only be exercised in the most exceptional circumstances and certainly not in a multi-handed case of some complexity. We have no doubt that Mr Davey was right to concede that in this case the course taken by the judge was quite unjustified.[49]Although the three decisions, to which we have referred, do not spell out all the specific dangers involved in a judge telling a jury that it has a right to stop a case, it seems to us that they can be expressed as follows. First and foremost this practice involves the jury in making a decision which will affect the future conduct of the trial without, as happened in this case, the benefit of speeches from all counsel or any legal directions from the judge. Secondly, the nature of the decision which the jury is asked to make is to decide whether or not the prosecution witnesses may be capable of belief. In other words the jury must reach a provisional conclusion. However, there is a risk that they may go further and decide at that stage that the witnesses are not just capable of belief but they are indeed telling the truth. Such a provisional conclusion, once reached, maybe very difficult to displace. Thirdly, as was explained in Kemp, juries are often keen to register independence and may react against what might be perceived to be pressure from judge to acquit a defendant. Fourthly, even though a judge may strive to avoid inviting a jury to acquit, a practice which has always met with disapproval, it may be very difficult to avoid giving that impression rather than simply informing a jury of its right to acquit, the latter conforming with the old practice before it also was disapproved. As the court said in Kemp “It may not be always very easy to distinguish between an invitation to acquit and a mere intimation of a right to stop the case”. Fifthly, this practice is inherently more dangerous when a number of defendants are involved and the factual evidence is complex. Sixthly, it is unfair to the prosecution when it is given no opportunity to address either the judge or the jury and correct a mistaken impression of its case. The same applies to defendants, albeit in all such cases, the presumption will be that the judge has only adopted this procedure in order to obtain, more quickly, verdicts favourable to the defence. Seventhly, there may be particular dangers when as in this case the defence are contemplating not calling any evidence. Eighthly, since the coming into force of the provisions of s.58 of the Criminal Justice Act 2003 the prosecution has a right of appeal against a determinative ruling of a judge but will have no right of appeal against an acquittal by a jury following a judge informing them that they have a right to stop the case.[50]In our judgment these appeals demonstrate a number of these dangers. It seems to us clear, although Mr Davey argued to the contrary, that as the close of the prosecution case approached the judge had formed an unfavourable view of the two main prosecution witnesses, Anthony Pattison and Jonathan Pattison. In the exchange between the judge and Mr Aspinall which took place on 5 December 2005 (referred to above) when Mr Aspinall applied for Anthony Pattison and Jonathan Pattison to be recalled the reference by the judge to the lack of credibility of these two witnesses is in our judgement a clear indication of his views at that stage on their general credibility.[51]Mr Davey sought to argue that the judge was only referring to the witness’ credibility in relation to the evidence of telephone calls. In our judgment this submission does not fit with the judge’s more detailed references to the credibility of these two witnesses in his directions to the jury on 10 January 2006 when dealing with the jury’s right to stop the case.[52]In our opinion, at the close of the prosecution case, the judge ought to have invited submissions of no case to answer rather than taking the step of telling the jury it could stop the case. If he had done so Mr Davey would, we believe, have been able to demonstrate that there was a clear case to answer. Indeed, when the judge was subsequently invited to rule that the evidence was so tenuous that the case should be stopped by him he declined to do so. In his ruling of 11 January 2006 on these applications he said:
“This is not a case where on the point that I left for the jury I thought the case was tenuous. I am, of course referring to Lord Justice Roskill’s dictum in Falconer-Atlee referred to by Lord Justice Kennedy in Speechley at paragraph 52. It is not a case where on that point I think it would be unsafe or unsatisfactory to allow the case to go to the jury.”
[53]We feel bound to observe that if the judge had all along been of the opinion that the prosecution case was not tenuous, we find it very difficult to understand how he could have thought it correct to inform the jury of its right to stop the case and why he did so using the terms which he did. It seems to us to follow that if the judge had always been of the view that the evidence of the two main witnesses was incredible he should either have taken the responsibility himself of stopping the case at the close of the prosecution evidence or allowed it to proceed in the conventional way. It is, in our view, unfortunate that the judge did not permit Mr Davey to develop his objections to the course which the judge said he was proposing to take.[54]Mr Davey submits that the judge’s directions to the jury explaining their right to stop the case went no further than informing the jury of this right. It was not an invitation to acquit and so minimise the risk of the jury forming premature conclusions adverse to the defence. We cannot accept this submission. We have no doubt that the judge’s directions read as a whole crossed the line between informing the jury of a right to acquit and an invitation to acquit. In our view the whole tenor of the judge’s directions, particularly the section couched in terms of questions the jury might care to ask themselves, gave the clear impression that the evidence of the two main witnesses was not capable of belief and in those circumstances the jury should reach verdicts of not guilty in respect of all of the defendants. However, even if the judge had been more circumspect in his comments on the evidence we are of the opinion it was wrong for him to take this step.[55]In our judgment, by giving this direction there is a real danger that the jury reached a conclusion about the case generally which was adverse to the defendants before they had heard any submissions from counsel. Although the direction was couched in terms of the jury deciding whether or not they could be sure that the evidence of either of the witnesses was truthful there was no full direction on the burden and standard of proof. Mr Davey argues that the fact that the sixth defendant Teale was acquitted is an indication that the jury did not reach an irrevocable conclusion adverse to the appellants when they made the decision that they wanted to hear more. However, as is clear from the summing-up Teale was in a very different position to these appellants. The case against him was much weaker and it is unsurprising that he was acquitted.[56]Next, even if in exceptional circumstances it might be permissible for a judge to take the step of informing the jury that it had a right to stop the case, in our opinion it was wholly inappropriate for the judge to do so in this case. The case involved six defendants and had lasted some weeks. One of the defendants, the appellant Collins, at interview had given a version of the events consistent with the prosecution case that the kidnap was genuine and not a sham. The judge gave no directions to the jury about how they should consider this evidence. Mr Davey submits that it was unnecessary for the judge to do so because the whole tenor of his directions was addressed solely to the credibility of Anthony and Jonathan Pattison. However, the fact remains that the jury were not told that this evidence was only admissible against Collins. In our judgment, in deciding whether or not they wished to hear anything further the jury must be taken to have considered all the evidence that, up to that time, had been placed before them.[57]We must deal with one further point made by Mr Davey in defence of the judge’s decision to inform the jury of their common law right to stop the case. He suggested in his skeleton argument that in adopting this course the judge was exercising powers of case management contained in the Criminal Procedure Rules. In this submission Mr Davey relied principally on rule 1.1 (2) (e) and (g). These powers enable a judge to deal with cases efficiently and expeditiously (e) and in ways that take into account (g)(iv) “the needs of other cases.” Mr Davey explained that this case had overrun its time estimate by a considerable margin. In the circumstances, the judge may have felt it necessary to seek a solution to a listing problem building up at the Teesside Crown Court.[58]As is apparent from the passages in the transcript, to which we have already referred, the judge gave no explanation for taking this step. However, we can entirely understand that as the Resident judge of a busy crown court he may well have been concerned about listing problems caused by the overrunning of this case. But we cannot accept that, if this was the reason for the judge adopting this course of action, it can be a justification for what he did. Rule 1.1 (1) requires that criminal cases are conducted in accordance with the overriding objective of dealing with cases justly. In our opinion a material irregularity cannot be justified as an incident of case management. As we have said, in the course of argument Mr Davey was constrained to concede that the judge was not justified in taking this course.

Conclusions on these two grounds

[59]It follows from the above that in our judgment the judge was wrong to tell the jury that it was entitled to exercise a common law right to stop the case. If he had thought that the credibility of Anthony Pattison and Jonathan Pattison was so completely undermined by cross-examination he ought to have taken the responsibility upon himself to stop the case. We wish to emphasise the disapproval expressed by this court in Speechley of the practice of informing a jury of its right to stop the case. We find it very difficult now to envisage any circumstances when it would be appropriate for this practice to be adopted. In this case, if the judge, instead of informing the jury that it could stop the case, had solicited submissions of no case to answer (as in our judgment he ought to have done) he may very well have been persuaded that, not only this course should not have been adopted by him, but the prosecution case was of sufficient strength for there to be no question of it being stopped by him.[60]Mr Davey submits that if we reach the conclusion that the judge was wrong in adopting this course of action the verdicts are nevertheless safe. We shall deal later in this judgment with this submission.

Associated grounds of appeal

[61]In separate grounds of appeal two complaints are made on behalf of Collins and Tyers relating to the judge’s directions on the failure of the appellants to give evidence. These grounds are associated with the first ground of appeal. Mr Aspinall submits that the judge’s directions to the jury in respect of the right to stop the case fostered in the jury an expectation that all the defendants would give evidence. Mr Hill submits that comments by the judge in the summing-up may have caused the jury to think that counsel expected the defendants to give evidence.[62]The basis for Mr Aspinall’s submissions is that the judge in his directions to the jury on 10 January 2005 told the jury that the decision for them was whether to find all the defendants not guilty or that they wanted to hear more. When the jury returned to deliver its decision the question asked by the judge was in these terms:
“The Recorder: will your foreman or forewoman please stand? Mr Foreman, is your decision either a unanimous one of not guilty generally or that at least some of you wish to hear more? The Foreman: we wish to hear more.”
It is submitted that by putting the question for the jury to decide in this way the judge raised the expectation that the jury would hear evidence from all or some of the defendants. We have already stated that none of the defendants did give evidence. Mr Aspinall submits that the judge led the jury to expect evidence to be given by the appellants. Since no evidence was called it was that much harder for the defence to displace the conclusion that the jury had reached namely that the prosecution witnesses were or might be capable of belief. In that way the safeguards built in to the conventional direction on the inference that a jury may draw from the failure of a defendant to give evidence were undermined. The Foreman: we wish to hear more.”[63]Mr Hill adopted Mr Aspinall’s submissions. He made a further associated criticism which relates to the summing-up. His criticism focuses on comments made by the judge about suggestions made to witnesses by counsel. Reminding the jury that there was not “a word of evidence” that the kidnap was a sham the judge told the jury that this was merely a suggestion made by counsel in cross examination. No valid criticism can be made of this comment but the judge continued:
“However, members of the jury, you should understand that barristers do not make up such matters out of their own invented imagination. Barristers make such suggestions and have a professional duty to make such suggestions on the basis of what their clients tell them and in the expectation that their clients will give evidence along such lines, even if in the event they don’t (emphasis added). In that connection in the end the barrister cannot force his client to give evidence, even if the client changes his mind at the last minute whether he is going to give evidence or not or whether he is going to tell his barrister whether he is going to give evidence or not…”
[64]Mr Hill submits that in these comments the judge wrongly led the jury to believe that when these suggestions were made by defence counsel, defence counsel believed that their clients would give evidence. He submits that the jury may well have drawn the inference that by not giving evidence the defendant had in some way tricked counsel or acted contrary to advice.[65]Mr Davey points out that in his directions to the jury on the right to stop the case the judge did inform the jurors that the defendants had an opportunity to give evidence if they wished to do so. He submits that the jury could have been under no misapprehension that the defendants had the right not to give evidence. Further he relies on the fact that when it came to the summing-up the judge gave the jury what is accepted to have been the correct standard direction on adverse inference when a defendant does not give evidence. Mr Davey concedes that it might have been better if the judge had amplified this direction by tailoring it to meet the circumstances of this case in which the jury had asked to hear more. He further accepts that the passages containing the judge’s observations on suggestions put by counsel for the defendants to witnesses could have been better phrased.[66]In our judgement there is some force in both these grounds of appeal. In our view the coming into force of s.35 of the Criminal Justice and Public Order Act 1994, not considered in any of the three authorities to which we have already referred, does raise a further problem if, at the close of the prosecution case, a jury is informed that it may stop the case. In our view it would require a very careful direction from the judge when dealing with inferences to be drawn on a defendant failing to give evidence following the jury’s decision that it wanted to hear more.[67]In this case, counsel for the defence made no objection or representations to the judge about the adverse inference direction being given to the jury. Nevertheless, we conclude that the error identified by Mr Hill in the summing-up coupled with the risk, as we see it, that the judge’s directions on 10 January 2005 may have fostered an expectation in the jury that the defendants would give evidence, are factors which must be taken into account when we come to assess the safety of these convictions.

Other grounds for appeal

[68]On behalf of Collins, Morrison and Threadgill criticisms are made of the summing-up for the judge’s failure to direct the jury clearly on the separate functions of the judge and jury (prosecution skeleton/ground 1.3). Mr Hill on behalf of Collins makes a number of further criticisms of the summing-up all of which can be compendiously included under the description “Review of the whole matter in the light of the directions on law and submissions made on behalf of the defendants” (prosecution skeleton/ground 1.4).[69]It is clear from the transcript of the summing-up that the judge did not give the conventional direction describing the different functions of the judge and jury, although he did refer to earlier directions which he had given to the jury on this topic. Following the summing-up, but before the jury had retired, Mr Davey in an effort to correct what the judge had said described the directions given by him as such that it “…may possibly have been thought to have been taken such a while that it wasn’t entirely clear where the boundaries were between your Lordship’s functions and the jury’s functions”. The judge in response gave no further direction to the jury on this topic.[70]The essence of the criticism on this ground is that taking the judge’s direction to the jury on the right to stop the case and the lack of clarity, as it was suggested, in the summing-up the judge may have blurred the distinction between these separate functions.[71]We can deal with this ground shortly. Although the judge’s direction on this matter was not in the conventional form, in our view it was adequate and on its own not sufficient to render the verdicts of the jury unsafe. As Mr Davey points out in the summing-up the judge referred on a number of occasions to the fact that the assessment of witnesses and of evidence was a matter for the jury. In our judgment this ground is not made out.[72]The criticisms of the summing-up under the next ground (1.4) are in our view more powerful. This ground alleges that remarks made by the judge in the summing-up set too high a hurdle for the jury in their assessment of the evidence and that the judge’s summary of the evidence placed too much emphasis on the arguments and submissions of counsel and insufficient emphasis on and analysis of the evidence itself and the issues which the jury had to decide. In their notices of appeal Morrison and Threadgill made similar criticisms of the summing-up and were given leave in respect of them by the single judge. They did not pursue these grounds in counsel’s skeleton arguments but these grounds affect all of the appellants and we take them into account in the appeals of each appellant.[73]So far as the first part of this criticism is concerned in the summing-up the judge made a number of comments which might be taken as reversing the burden of proof. For instance in one passage when dealing with the credibility of Anthony Pattison and Jonathan Pattison the judge said:
“…there are two fundamental questions which apply. They are, first, taken in its totality, does the evidence of either Anthony or Jonathan show that either or both of them is completely unworthy of belief, in other words, as I said before, do you reach that stage when you say, “I can’t believe a word that either of them or one of them says”, and, second, if in your judgment either has lied, whether to the police or to you why is that and what is the truth behind the lie?”
There are other similar comments made by the judge which might be interpreted, as is submitted, that it was for the appellants to show that these two witnesses were not capable of belief. However, the judge gave the jury a full and comprehensive direction on the burden and standard of proof and in the face of that we are satisfied that this criticism is not made out. The jury can have been left in no doubt that it was for the prosecution to prove its case.[74]The next part of this ground is more difficult. We are told that the jury started to hear evidence on 8 November 2005. There was a break in the proceedings over Christmas. The judge’s summing-up took place on 19 January 2005. It follows that it had been some weeks since the jury had heard the main body of the prosecution evidence. It is submitted by Mr Hill that, in the circumstances, it was necessary for the judge to give the jury a careful summary of the evidence and some analysis of the issues which they had to decide. This was, he submits the more important, because of the jury’s expressed desire to hear more following the judge informing them of a right to stop the case. It is submitted that in large measure the summing-up was a recital of questions for the jury to consider and the arguments of counsel with no clear summary of the evidence or analysis of the issues for the jury to resolve.[75]Mr Davey submits that the evidence heard by the jury was largely not in dispute. It follows, he submits, that it was not incumbent upon the judge to give a detailed summary of it. What the judge did was to provide the jury with a short but comprehensive summary of the essential points which the jury had to consider and the arguments on both sides.[76]In dealing with this ground of appeal we are conscious that we did not hear the evidence nor are we in any position to judge the atmosphere of the trial. However, it is apparent from everything we have heard that the course of the trial was from the jury’s point of view disjointed by the large number of legal issues which the judge had to resolve in their absence. In view of that we are bound to say that the impression we gain from the summing-up is that there is force in the criticism that the judge’s method of dealing with the evidence and the arguments was not as helpful to the jury as it might have been. For this court this can only be a matter of impression. The judge cannot be criticised for making his summing-up as short as possible. But, in our judgment, it lacks the structure of a careful summary of the evidence and analysis of the issues which might be expected at the end of a trial lasting some weeks and when the deployment of the evidence before the jury had been disrupted by interruptions for legal argument. It also lacks any attempt by the judge to overcome the risk that the jury had already arrived at a provisional conclusion prompted by the judge’s invitation, as we find it to be, to acquit the defendants at the close of the prosecution case.[77]Finally, Tyers was given leave to argue that the judge should have stayed the case on the ground that it was an abuse of process. The basis for this ground is that the police and prosecution knew from an early stage that the Pattisons were not truthful in their denial of being involved in criminal activity. The subsequent admissions of police intelligence showed that the Pattisons were involved in dealing in contraband cigarettes and money laundering. In short the submission is that it was wrong for the prosecution to put forward witnesses who were known to be untruthful. To this Mr Aspinall adds that his client was prejudiced by not being informed of this intelligence before he was interviewed. He submits that if this information had been available to him before interview his client might not have refused to answer questions.[78]The judge rejected the application. He ruled that the police had acted in good faith and that the prosecution was not founded upon deception. Any unwitting deception had been cured by disclosure following PII hearings. The judge added that no submission had been made to him that any misleading material or proposition had been put to Tyers at his interview. We agree with judge’s reasons for rejecting this application. This ground fails.

The safety of the verdicts

[79]There are other grounds of appeal but in view of the conclusion which we reached it is unnecessary for us to deal with them. We turn to the principle argument of the respondent in answer to the first ground of appeal and in response to all other grounds in which we have found merit. It is that the prosecution’s case was so strong that despite the irregularity and any errors in the trial process to which we have referred the verdicts are nevertheless safe. Mr Davey, at some length, took us through the evidence in support of the prosecution case. He submits that the case did not depend solely on the credibility of Anthony Pattison and Jonathan Pattison. He referred us to other evidence independent of the evidence of these two witnesses which supported the prosecution case that the kidnap and blackmail were genuine. He submits that the telephone evidence connecting all four appellants with the kidnap was compelling. In this connection we have no doubt in concluding that a ground of appeal put forward by Tyers that there was no prima facie case connecting him with the kidnap clearly fails. Mr Davey also points to the fact that if the jury concluded that the Pattisons were truthful in relation to their assertion that the kidnap and blackmail was not a sham Collins and Morrison were bound to be found guilty of these offences. Further Mr Davey relies on matters set out in paragraphs 2B and 3 of his skeleton argument. We bear these matters in mind.[80]However, powerful as the prosecution case may be, there is in our judgment one clear difficulty in the way of this court concluding that despite the effect of the irregularity and defects in the trial process to which we have referred the verdicts are safe. We return to the judge’s observation before and at the time that he informed the jury of its right to stop the case. As we have said it seems clear that by his response to Mr Aspinall when an application was made on 5 December 2005 to recall the Pattisons the judge had formed an adverse view of the credibility of those two witnesses. Also, despite the judge’s observations in his ruling that there was a case to answer on 11 January 2005 we cannot conceive he would have thought it right to inform the jury of its common law right to stop the case on 10 January 2005 if, following cross-examination of the two main witnesses, he had not regarded the prosecution case as other than very weak. It would have made no sense for him to take that step if he had regarded the case against the appellants as strong. It must not be forgotten that in view of the admissions by the respondent about the Pattisons’ connection with contraband cigarettes and money laundering these witnesses were clearly lying when they denied being involved in any criminal activity. As the judge pointed out in his directions to the jury on 10 January 2005 and in the summing-up first base for the prosecution was to establish that the Pattisons were truthful in their assertion that the kidnap and blackmail were genuine and not a sham. In addition, powerful as the evidence of telephone calls may be, counsel for the appellants point out that in a number of respects that evidence was open to interpretation and inferences different from those contended for by the prosecution. In the circumstances we find that the cumulative effect of the irregularity and errors is such as to render the convictions on counts 1 and 2 unsafe and accordingly they must be quashed. As we said when announcing our decision at the close of the oral arguments we direct a retrial. For the avoidance of doubt Morrison’s convictions on counts 3 and 5 which, as we understand were directed after he pleaded guilty during the trial, were never in issue in this appeal and remain valid. For the avoidance of doubt Morrison’s convictions on counts 3 and 5 which, as we understand were directed after he pleaded guilty during the trial, were never in issue in this appeal and remain valid.

Cited in 1 later judgment