Cole, R v [2008] EWCA Crim 3234

[2008] EWCA Crim 3234

Case No 200802825/C4

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Wednesday, 17th December 2008

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE LATHAM

MR JUSTICE ANDREW SMITH

HIS HONOUR JUDGE SCOTT-GALL QC

(Sitting as a Judge of the CACD)

Between

R E G I N ACrown

Between

DEAN COLE

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Miss K Howarth appeared for Appellant

Mr M Maynard appeared for Crown

J U D G M E N T

LORD JUSTICE LATHAM:

On

[1]24th April 2008 in the Crown Court at Northampton, this appellant was convicted of dangerous driving by a majority of 11 to 1. He was ordered to pay a fine of £1,000, 28 days' imprisonment to be served in default of payment and was disqualified from holding a driving licence for 2 years, with an extended re-test to be passed. He appeals to us against conviction with leave of the single judge.

[2]The facts fell within a very small compass. At 10.20 pm on 12th April 2007 the appellant was undoubtedly one of the occupants of a white Rover motor vehicle which was driven dangerously in the Rushden area. It is unnecessary for the purposes of this appeal to give the details of the driving which formed the basis of the charge of dangerous driving because the issue for the jury ultimately was whether or not the appellant was the driver of that vehicle.

[3]The end of the driving in question occurred when the Rover motorcar came up to a roundabout and collided with a Ford Mondeo which then spun into the path of, but did not collide with a heavy goods vehicle. The police, who had been chasing but had in fact aborted the chase because of the dangerousness of the speed at which the Rover had been driven, arrived on the scene shortly after that accident. Other vehicles also arrived driven by friends of the appellant at a later stage.

[4]There is no doubt that the appellant at or about the time that the police arrived exited the Rover through the passenger door and ran off up the road. He was pursued by the police and eventually arrested. There was some dispute about whether he was hiding to avoid arrest at the time or not. Another man, Dominic Florio, who was also in the Rover, was arrested at the scene.

[5]The defence case was simply that he was and had at all relevant times been a passenger seated in the front passenger seat. Dominic Florio was in the back seat. The driver was an unnamed third male whom the appellant and Florio, who was called to give evidence on his behalf, said that they could not name.

[6]The sole issue therefore for the jury was whether or not they were satisfied that the appellant was the driver. The evidence of the police officers was given by Police Constable Lee, who was the driver of the police patrol car and Police Constable Clifton. As far as Police Constable Lee was concerned, his evidence as to the relevant part of the story was that he saw the Rover passenger door opened and the appellant jumping out wearing a white T-shirt. Police Constable Lee's evidence was that the way in which he left the vehicle resulted in his forming the opinion that he had in fact come from the driver's seat and not the passenger seat. He gave evidence as to how the appellant then ran away and was eventually caught. Police Constable Clifton, who was in the front passenger seat of the patrol car, did not recall whether the passenger door was already opened when they arrived. He certainly did not see the driver's door open at any time. He was certain that there were only two people in the car and that the person who got out, that is the appellant, was clambering over the passenger in order to get out before he then ran off.

[7]The only other eyewitness evidence from the prosecution as to what had happened at the roundabout was from the driver of the heavy goods vehicle. He arrived on the scene moments after the collision between the Rover and the Mondeo. He braked. In his statement he said and repeated in evidence that certainly at one point he was clear that he saw two white males leaving the vehicle and saw both doors open. He described the driver of the car, that is the one who had come out of the driver's side, in the same terms as others had described the appellant; in other words, he was wearing a white T-shirt and he had short hair. Part of his evidence was to the effect that at one point certainly he believed that the driver had in fact run away from the scene in the same direction as the police had said that they saw the appellant, having got out of the passenger door, running away from the scene.

[8]Be that as it may, that was the state of the prosecution evidence when the evidence was closed. There was a submission of no case to answer in circumstances to which we will return and then the defence case was essentially the evidence of the appellant and Dominic Florio. The appellant, as we have indicated, gave evidence to the effect that he was the front seat passenger and it was from there that he had emerged from the car and run away. Domestic Florio sought to support that account. Again, as we have indicated, neither of them was either able to or prepared to, they said, give the name or anything other than a general description of the third man who was the driver.

[9]The other evidence called on behalf of the defence was evidence from Christopher Whiting, who gave an account of how it came about that the appellant, Dominic Florio and a third person, who was the driver, came to be in possession of the Rover. There was no other significant relevant evidence called on behalf of the defence. It can be seen, accordingly, that this was a relatively short issue for the jury to determine; and it is comforting to see that it was dealt with within a short compass in terms of time. This court has seen far too many cases such as this being spread over days which have been wholly wasted. This trial started on the Wednesday and finished on the Thursday morning. The summing-up was commendably brief and to the point.

[10]The criticisms that are made by Miss Howarth on behalf of the appellant, which support her submissions that the conviction is unsafe, fall essentially into two parts. Firstly, it is submitted that that the judge failed in his summing up to deal properly with the law and in answering a jury question to deal adequately with the facts. Secondly, it is submitted that that judge's interventions during the course of the trial was such as to show such marked hostility to the appellant and to the appellant's case and to the appellant's counsel as to render the conduct of the trial unfair.

[11]Mr Maynard, on behalf of the prosecution, submits that in a way those two bases upon which the appellant criticises the safety of his conviction can be seen in an accumulative guise. To some extent we would agree. But nonetheless, it seems to us perfectly adequate for us to deal with them for the moment in two separate compartments. As far as the summing-up is concerned, one major complaint about it is that it did not contain in any form a direction along the lines of a Turnbull or modified Turnbull direction. We have to confess some surprise at that submission. This was not an identification case. The issue for the jury, ultimately, was whether they considered the police evidence reliable in the first instance, in other words, that the officers were correct to say that the appellant came out of the vehicle in the way they said he did, and accordingly their inference, that he was the driver was one that the jury could properly accept, or whether there was some doubt about that evidence, bearing in mind in particular not only the appellant's evidence but also the evidence of the heavy goods vehicle driver. There is no doubt that the appellant did come out of the passenger side door (he admitted it), and there is no doubt that he ran away. There is no doubt that he was the one who was caught by the police in the circumstances that they described. It follows that, on that issue, there is no question of there being any identification problem which required a Turnbull direction, the question was the reliability of the police inference that he was the driver.

[12]The second submission that is made in relation to the summing-up is that the judge did not deal adequately with the function of the judge and the jury, or the burden and standard of proof in particular, nor with the defence case. However, a reading of the summing-up makes it quite plain that the judge in concise terms gave to the jury a full and proper direction that the evidence was for the jury to assess and it was for the judge to tell the jury about the law. The judge also gave a short, and again concise, direction as to the burden and standard of proof, about which, in our judgment, no criticism can be made. He identified the issue for the jury in, again, concise but perfectly, in our view, adequate form. So far as the defence case was concerned, he gave to the jury a clear direction, a clear synopsis of the defendant's evidence and the evidence of the other defence witnesses. He did so in terms which pointed out that there were some difficult questions for the appellant to answer, such as why he had run away, but that cannot be said to give rise to unfairness, it was a question which the jury surely was likely to be asking itself.

[13]There was, however, one significant omission from the summing-up. That was anything about the evidence of the heavy goods vehicle driver. That was compounded by the fact that the jury asked a question which related to the state of the car and in particular the doors of the car. The jury were clearly concerned as to the extent to which there was any evidence relating to the driver's door which could help them in relation to the matter. What the jury asked was, firstly, did the driver's door operate normally after the accident. The judge simply related the evidence that the police had given, namely the driver's door did not open at time and remained closed throughout. The second question was related to a separate issue, with which we are not concerned. However, it will be noted that the judge did not, in answering the question from the jury, say anything about the evidence of the heavy goods vehicle driver.

[14]Miss Howarth, appearing on behalf of the appellant, after the jury had retired again, reminded the judge that there was that evidence but the judge indicated that he was simply not prepared to get the jury back in order to add to the directions that he had already given. That, it seems to us, does give rise to some concern about the way in which the judge dealt with the case but might well not be sufficient in itself to justify the conclusion that this conviction was unsafe.

[15]So we turn to the complaint which is made about the judge's approach to the appellant's case and to counsel during the course of the evidence and the hearing overall. We start by saying that this case was being presented to the court by a counsel who is a relatively junior counsel and was clearly doing her best for her client, as she has done before us today. But during the course of the hearing she was made subject to either express or implied criticism, which is most unfortunate and should play no part in a criminal trial, particularly if that criticism is made in circumstances which mean that the client can hear that criticism, which is undoubtedly likely to engender a feeling that a judge has not perhaps given his case a fair crack of the whip.

[16]Perhaps the criticism that is made of the way in which the judge dealt with matters can be best exemplified by giving some examples -- they are not exhaustive -- of the judge's interventions and comments. The first intervention which it seems to us is one which is worthy of comment, was when Miss Howarth was cross-examining Police Constable Lee. Police Constable Lee's evidence was, as we have indicated, to the effect that the way that the appellant exited the car made him feel that he was emerging across the passenger seat and not from the passenger seat. His evidence was not entirely consistent with the statement that he had made when he was before trial. The effect of his evidence before trial was that he had exited head first, with his feet landing on the floor. Miss Howarth wished to ask him why it was in his evidence in-chief he had said that he had landed on all fours. Having identified the passage in the statement, and having obtained the answer:

"I missed that out in the statement", the judge said: "

It is a matter for the jury whether coming out head first is wholly inconsistent with what the officer said. If that is an important detail so be it. MISS HOWARTH: I apologise if I commented unnecessarily. Which is it: is it all fours or head first? THE JUDGE: Or is it both? A. It is both." Miss Howarth says that is an example of the way that the judge came to the aid of the police officer in giving evidence which was to the detriment of her client.

[17]That example is replicated in the evidence of the second officer who when Miss Howarth was cross-examining, it will be remembered he was in the passenger seat of the police car, was asking him about how it came to be that he was able to see inside the car whereas the first officer, Lee, had indicated that the glass was tinted and he himself was unable to see inside the car. The question that was asked by Miss Howarth related to the moment at which the appellant left the car:

"Q. That is not right, is it? Your car was moving when he leaves the vehicle? A. When we come to the roundabout the vehicle has already had a crash and it is stationary. The door was opened. THE JUDGE: And then you could see clearly inside? A. You can clearly see inside when the door is open."

Later on, when Miss Howarth was again asking whether it was possible for him to see:

"Q. That is not right, is it, because your vehicle had not stopped when you saw him leave the vehicle, had it? A. Yes. THE JUDGE: Of course, if you are in the front passenger seat on the left you have a better line of vision than the driver sitting on the right. A. Correct."

As we say, that is an example, it is said, of the way in which the judge was seeking to help the prosecution evidence. When it comes to the evidence of the driver of the heavy goods vehicle, Mr Anning, who talked about, certainly at one stage in his evidence, seeing both doors open. The question from prosecuting counsel was:

"Q. What happens? A. At the stage after the car was stationary I saw the doors open and [then there he was obviously interrupted] THE JUDGE: The doors open. A. Both doors open. Q. Look at the photograph 8."

Interposing there, it should be said that photograph 8 was a photograph taken at the scene; and the driver's door was undoubtedly closed. We shall see that clearly was a matter which the judge had determined was a critical piece of evidence, although there was no evidence as to precisely when the photograph was taken in relation to the incident. Then continuing the heavy goods driver's answer:

"Obviously, the door was shut again because they both ran out of the car. I thought they were both out of the car because I saw the driver running up [then there is a question of what road] Erdington[?] road."

Later on, Mr Anning said again that he had seen the driver emerging from the car. That is important in relation to matters to which we will return.

[18]The point at which it seems to us that we can go to at this stage is when Miss Howarth was making a rather unrealistic submission that there was no case to answer. After the jury had retired, the exchange went as follows:

"MISS HOWARTH: Your Honour, there is more than one matter. The first is to make a submission of no case to answer on the basis of the identification evidence heard so far, namely, that it is both inconsistent and unreliable. [We interpose that that seems to be a misunderstanding about what the real issue was] THE JUDGE: I am against you. Next submission. MISS HOWARTH: Your Honour will not hear me as to the points? THE JUDGE: You want to elaborate? MISS HOWARTH: I do wish to do so, yes. First, I refer to the evidence of Christopher Anning, the driver of the heavy goods vehicle. He makes two witness statements, one immediately after the incident and one earlier this year. In both he makes clear statement that he sees two persons exiting the vehicle. He backtracked from that today but only after he had said twice that that was the case and it was put to him 'Well, might he not have got out some other way?' He was also quite clear in his evidence today initially that there were two doors open. He said it twice. THE JUDGE: He is obviously wrong about that. MISS HOWARTH: I submit that it is certainly one version of events."

It can be seen there that the judge's attitude to the evidence of Mr Anning, and we have seen the echo of that when it comes both to the summing-up and the answer to the jury's question. He ignored the evidence of the heavy goods driver, in essence, as if it was of no relevance.

[19]It is not necessary to go through the remainder of the submissions that were made, but it is quite plain that the judge was expressing hostility to the submissions. They may or may not have been submissions which it was appropriate to make, but at least Miss Howarth should have been given the courtesy of being allowed to make them in a way which enabled her to develop the argument albeit shortly.

[20]After the rejection of the submissions of no case to answer the appellant gave evidence. The complaint in relation to his evidence in particular is as to the judge's attitude at the time of his cross-examination, which is exemplified by the following passage (page 88):

"THE JUDGE: That is irrelevant. You have to stop and think about this, Mr Cole. I suspect, but I do not know, that most members of the jury, if not all, would assume that if they had been in an accident for which they were not responsible - they were not the driver of the vehicle - they would stay to see if anybody was hurt or stay to speak to the police, not run way. A. Yes. Q. So, do yourself justice and give us the reason why you ran away? A. I cannot explain why I ran. It is just that my head was not clear and I did not know what. I just got out. Q. Did you think it was a stolen car? A. No, because I had just been with Chris to go and get it. Q. You did not think it was a stolen car? That might be a reason for running away, but you did not think that? A. No."

[21]The judge also intervened during the course of the evidence of the witness, Mr Whiting, in a way which was to the detriment to the witness. We give by way of example what the questions and answers that he gave in relation to why he thought that the police officer had sought to stop vehicles at that time. Because Mr Whiting had in fact gone to the scene and was there after the appellant had been arrested (page 104):

"Q. Can you tell us why you approached him? A. Because I heard one of the officers say they were arresting one of the guys for----- Is it TWOC or something like that? It is taking without the owner's consent, basically. THE JUDGE: It is an expression with which you are adequately familiar. A. Pardon? Q. Everybody knows it. A. It is on the telly, quite often? THE JUDGE: yes."

It was a rather unfortunate comment for the judge to make and it appears from his having intervened with his second question, that perhaps he appreciated that it was one he should not have made. Those are examples of the way in which the judge intervened during the course of evidence and also examples of the way in which he treated Miss Howarth's questions and submissions.

[22]His attitude to Miss Howarth is however more unhappily exemplified by a note which he provided to her, it should be said not in the presence of the jury, but in the presence of her client, on the morning of the second day. It is headed "6 P's" and then there is a list of six words, in heavy letters:

"Prior Planning Prevents Piss Poor Performance."

We have no indication from the judge as to whether he thought that it was a humorous attempt to indicate to Miss Howarth what he felt or whether it was pure rudeness. It certainly appears to us to be a wholly inappropriate note to have sent to counsel. Even if he did feel that there were aspects of Miss Howarth's approach to the case which perhaps, as a young barrister, he felt might have resulted in her not helping her client as much perhaps as he thought that she should or helping the court as much as he thought she should, that was not the way to express himself. It can have had nothing but a detrimental effect on the confidence of Miss Howarth; and since it seems to us to be a touchstone of his attitude to Miss Howarth and the way that the trial was conducted, it seems to us that it is a matter which helps us to understand whether or not this appellant can have felt that he was getting a fair trial in front of this judge. It may be thought that in the examples that we have given we have only been relating the sort of interventions which many a judge who feels that there are matters which he can properly and robustly comment on can be said to be entitled to make the totality of the material before us. But the note persuades us that the complaints about which Miss Howarth makes go beyond complaints which we can say have not affected the safety of the conviction.

[23]As Mr Maynard quite rightly concedes, it is the cumulative effect of all the matters about which Miss Howarth complains which has to be looked at in assessing the safety of the conviction.

[24]We are satisfied that when we put together the matters which took place during the course of the evidence and the submissions, the judge's failure to mention, whatever views he may have taken about it, the evidence of the heavy goods vehicle driver, we cannot feel comfortable about the safety of this conviction and accordingly we quash it.

[25]MISS HOWARTH: I am most grateful, my Lord.

LORD JUSTICE LATHAM: Thank you very much both of you.

[27]MR MAYNARD: My Lord, I am under instructions to apply for a retrial under section 7.

LORD JUSTICE LATHAM: What do you say, Miss Howarth?

[29]MISS HOWARTH: Simply this. Mr Cole has already been affected by the driving ban, he has served that ban since.

LORD JUSTICE LATHAM: He has now had about 6 months -- more than that.

[31]MISS HOWARTH: Since 12th April.

LORD JUSTICE LATHAM: Has he paid the fine?

[33]MISS HOWARTH: He has paid the fine. He is somebody, a self-employed plaster, who lives in the country and it has had heavily impacted on his ability to make a livelihood.

[34]MR MAYNARD: I concede that this offence goes back to April 2007 of course. (The Bench Conferred)

LORD JUSTICE LATHAM: Thank you, Mr Maynard. I can understand why you were instructed as you were. I think in the circumstances justice is best done by simply quashing the conviction.