O, J and S, R v [2008] EWCA Crim 463

[2008] EWCA Crim 463Case No 2007/6589/C5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT READING
HIS HONOUR JUDGE CRITCHLOW
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/03/2008
Before
THE PRESIDENT OF THE QUEEN'S BENCH DIVISIONMR JUSTICE DAVISMR JUSTICE DAVID CLARKE
Between
RAppellantO, J and SRespondent
Mr P. Reid and Mr S Burns for ProsecutionMr M. Parroy, QC and Mr D Maunder for OMiss T Ayling, QC and Mr F Laird for JMr M. Fitton, QC and Mr R Duval for SHearing Hearing dates : 14 th February 2008
Judgment
[1]This is an application by the prosecution under section 58 of the Criminal Justice Act 2003 for leave to appeal against rulings made on 12th December 2007 by His Honour Judge Critchlow after the close of the prosecution’s case at Reading Crown Court. The application is opposed by the defendants at the Crown Court (as we shall describe the Respondents) who were represented at the hearing of the application by Leading Counsel.[2]Something of the flavour of the interesting issues which we were required to address is encapsulated in the fact that whereas it was submitted to the judge at the end of the prosecution case on behalf of the defendants that there was no case for them to answer, on this application it was argued that notwithstanding the judge’s decision that he would direct the jury to ignore some important evidence called on behalf of the prosecution, his ruling that there was a case to answer was correct.[3]This prosecution arose from a major burglary which took place in the early hours of 10th June 2003 at Waddesdon Manor in Buckinghamshire. It undoubtedly was a carefully organised crime committed by professional burglars who, in the course of a few minutes, removed valuable precious items of antique property with a value in excess of £5,000,000. O and J were alleged to be two of the burglars. They are linked through marriage or long standing relationships. S is J’s father. He was alleged dishonestly to have handled some of the property stolen in the burglaries. During the daytime of 10th June sightings of vehicles belonging to and associated with the defendants were made on the campsite then occupied by J at a disused airfield in Old Shilton airfield. Connections could be established between these cars and a burnt out vehicle linked to the burglary itself. However it was concluded at the time that the evidence was insufficient to mount a prosecution. The key to the decision to prosecute, and the continuation of the prosecution itself, depended on the evidence of a heroin addict and long-standing, if menial, associate of J, Timothy Margerrison.[4]In May 2004, Margerrison was arrested for firearms offences. Thereafter he was interviewed at length, and arrangements for “witness protection” measures and “welfare issues” were discussed with him. He provided information which suggested that he knew about and could provide admissible evidence against the defendants. He also identified a potential further witness against S, a man called Vick. This information was not further investigated at the time. Vick was not interviewed. No witness statement was taken from Margerrison.[5]In the spring of 2007 Margerrison approached the police, and in due course, after a series of lengthy interviews, all of which were carefully preserved and subsequently disclosed to the defence, he made a witness statement dated 13 June 2007, which represented a distillation of these interviews and implicated the defendants. Vick too was interviewed, and he made a witness statement dated 4 June 2007, implicating S.[6]Margerrison’s witness statement provided the material which justified the prosecution of these defendants. It was lent strong support by the evidence uncovered during 2003, and in particular on 10th June 2003 itself. The case was prepared for trial. Appropriate disclosure was made. However, as we shall see, the information provided to the defence was wrong in one important respect, the date of another burglary. Neither the error nor its possible significance became apparent until Margerrison’s evidence was completed.[7]The Crown’s position from start to finish was that Margerrison’s evidence was critical: without it there was insufficient evidence to justify a conviction. The judge was naturally acutely aware of the importance of this evidence to the Crown’s case. Indeed, as he put it in a later ruling, without it there was “little evidence” against the defendants. This reality did not escape counsel for the defendants. At the outset they applied to the judge that the indictment should be stayed as an abuse of process, alternatively that Margerrison’s evidence should be excluded on the “fairness” principles embodied in section 78 of the Police and Criminal Evidence Act 1984. The applications were subject of a voir-dire which lasted between 26th November and 3rd December, and were eventually rejected by the judge.[8]After the jury was sworn on 3 December, the case was opened, and Margerrison was called to give evidence over a television link. He described how he had lived with the J family for 2½ - 3 years. He said that he first heard about the Waddesdon Manor burglary on the night after it happened, when S told him “they have only gone and robbed a museum”, apparently referring to O and J. Later he said it was not just S who said too much in from of him. O and J, among others, talked about it after it had happened. During that night he had heard a vehicle returning to the caravan site at Old Shilton where he was living at the time. J was a passenger in the car. He had not seen any items, but S had described some of them and told him about the theft of gold boxes which had initially been put in a transit van which had broken down. S showed him cuttings from a newspaper about the Waddesdon Manor burglary.[9]Margerrison said further that he had been with S when S asked Vick if he would help dispose of some of the gold boxes. Vick was later to say that this meeting took place in the summer. Margerrison however put the occasion of the conversation with S at a time when Vick said that the family was living on a site in Withington. The family was evicted in February 2003. Nevertheless, he maintained that the relevant conversation involving Vick took place in the summer.[10]When he was cross-examined, Margerrison immediately admitted that he found it difficult to remember dates. He confirmed that at the time of these conversations, his caravan was parked on some concrete hard standing. He agreed that he had been on the site on two occasions, the first in March and the second in June. In answer to the direct question “and the events you are talking about are events that took place in March, aren’t they?” he replied “yeah”.[11]In re-examination, he remembered agreeing that the events about which he was talking had taken place in March 2003, but added that he could not remember “exactly” the dates when he had been present on the site. He would not be able to tell the jury when he went to the site, or when he left it, or returned. He added that he had seen the newspaper cuttings on the night after it had happened, when S told him that a museum had been robbed, as they were “all round the campfire talking about it”. He then said that he had not seen the newspaper cuttings until about a week after it was in the papers, and he then linked the cuttings to what was described “accurately”, as the “Rothschild’s burglary”.[12]Two important features of the evidence, as it bears on the present application, were now apparent. Margerrison’s evidence tended to implicate the defendants in one serious burglary, not two. According to his dating this occurred in March 2003, well before the burglary with which the jury was concerned. However he also linked it to the newspaper cuttings referring to the Rothschild’s burglary. His timing was, from the prosecution point of view, undermined by evidence from a police officer which showed that the position occupied by Margerrison’s caravan in March 2003 coincided with the critical conversation having taken place at that time rather than in June. Moreover in interview in April 2007, answering questions, Margerrison suggested that items from the burglary were loaded into a jeep, at dusk, at approximately 8pm, which again suggested that this incident had not taken place in June.[13]On 10th December, at the close of the prosecution case, submissions were made that there was no case for the defendants to answer. The judge had well in mind the criticisms which could properly be made of Margerrison’s evidence, but took the view that the issue of his accuracy and truthfulness, including his evidence as to dates, together with the independent support for the link between the defendants and the Waddesdon Manor burglary, should be decided by the jury. At the time of his ruling, however, neither the judge, nor counsel had fully assimilated the importance of the recent information received from the Crown, that another major burglary, at Madresfield Court in Worcester, had taken place, not in January 2003, as the defence had been informed earlier, but on 11 March 2003. There were some significant differences between the March 2003 burglary and the burglary with which this trial was concerned. In particular, in the Madresfield Court burglary, a boat was used to cross a moat to assist to gain access. The boat was subsequently found upturned, with a damaged clock inside it. Although many similar items were stolen in the two burglaries, clocks did not form part of the property stolen at Waddesdon Manor. On re-studying the interviews conducted with Margerrison in May 2004, it emerged that he had mentioned assisting S to bury some clocks. Moreover, according to Margerrison, in the discussions about the burglary, J said something about some of the items getting wet, which is more consistent with the Madresfield Court rather than the Waddesdon Manor burglaries.[14]On the basis of this additional information, a renewed application that the indictment should be stayed as an abuse of process was argued on 11 December. The context was that the prosecution had not sought to introduce evidence of the Madresfield Court burglary as part of its case against the defendants, and equally, none of the three defendants suggested that the evidence given by Margerrison must have related to it. This was unsurprising. The erroneous date when it was said to have been committed, January 2003, was not linked to Margerrison’s own assertion that the conversation took place in March. In that situation, it would take remarkable forensic courage, if not foolhardiness, for the defence positively to have advanced the case that they were guilty not of the major burglary with which the jury was considering, but of a different, equally professional major crime, which took place not in March (as Margerrison said) but in January. In any event, the defendants came to trial to meet an allegation relating to Waddesdon Manor, not Madresfield Court, and apart from detailed instructions from the defendants, some exceptionally delicate professional decisions would have been required before their counsel could have advanced any such case.[15]In his ruling, Judge Critchlow noted that bad faith was not alleged against the prosecution or police. The error had not been deliberately perpetrated, somehow to prejudice the defence. The abuse of process argument proceeded on the basis that, first, the defendants would be gravely prejudiced if the jury were informed about the Madresfield Court burglary, and any suggestion that the property stolen in it may have found its way to the site of the defendants and Margerrison’s home in March 2003, and second, that the defendants would now have a burden imposed on them to show that they were not involved in the offence.[16]The prosecution suggested that one solution would be for Margerrison to be recalled for further cross-examination, alternatively that the jury should be discharged, or if not discharged, told that there was a burglary at Madresfield Court in March 2003 when gold boxes and snuff boxes were stolen, but that no one had been prosecuted for the offence. The judge noted that there was no evidence that any of the three defendants was implicated in the Madresfield Court burglary.[17]The application was refused. The judge concluded that the defendants had not suffered serious prejudice. The case would continue. His decision on 10th December that there was a case for the defendants to answer, and his further decision, on 11th December, to reject the renewed application that the case should be stopped as an abuse of process form the basis of the present application. In essence, the prosecution suggest that the judge’s rulings on 12th December were inconsistent with his earlier rulings.[18]Events on 12th December, if not chaotic, were certainly remote from the organised structure which should be the normal characteristic of a criminal trial. What, in effect, happened was that for the first time the attention of counsel for the defendants turned to the consequences of the changed information about the Madresfield Court burglary on the admissibility of Margerrison’s evidence. Counsel for O and J suggested it would be unsafe for the jury to conclude that several features of Margerrison’s evidence were directed to events in March 2003. They were therefore irrelevant and inadmissible, alternatively their prejudicial effect far outweighed their probative value. Accordingly, the judge should direct the jury to ignore them. The points identified in the written submission read:
"1. The suggestion that the defendant J returned to the Carterton site one night in a Range Rover that the witness associated with O. 2. The alleged comments made by R to M between 8.30 and 9.30 am 'the next day' to the effect of "
They've only gone and done a museum" etc. and any reference to whom he meant by "they" (this evidence is not probative and is inadmissible against O and J in any event). 3. The suggestion that the defendants O and J were involved subsequently in wrapping unknown items in the woods/forest adjacent to the Carterton site. 4. The suggestion that the defendants O and J were involved in loading a transit van with the unknown items. 5. The suggestion that the Transit van broke down and had to be towed back to the site still containing the unknown items. 6. The suggestion that the defendants O and J were involved in unloading the Transit and loading a Jeep/4x4 vehicle with those items, after which the witness saw the jeep go past him loaded "chock-a-block". 7. The alleged conversation with R "a few days later" when he showed Margerrison something and said it would be the "undoing of them" (inadmissible against O and J in any event). 8. Later conversations with or between R and J, around the campfire or elsewhere, where he states "they discussed boxes" and "from what was said some boxes were taken", together with any reference to box(s) getting damaged/wet and being discarded (all inadmissible against O in any event)."[19]In his initial ruling the judge accepted the defence submission in relation to item 1 as it affected O, but not J. He agreed in relation to items 3, 4, 5 and 6 as it affected both O and J. He accepted that item 7 related to matters inadmissible against either O or J, but as to item 8, although inadmissible against O, it was admissible against J. The judge made clear that he would give the jury a formal direction on the topic. The judge then rose. The court sat again at 11.32. Counsel for the Crown sought clarification of the rulings the judge had just given. The judge confirmed his rulings, and indicated that the jury would be directed to disregard the matters he had identified. Counsel for J then renewed an application that there was no case to answer. The application was dismissed. Counsel for S applied for an adjournment to listen to the tape-recording of Margerrison’s evidence. The application was granted. The court sat again at 12.35. Submissions were made on behalf of S about the admissibility of some of Margerrison’s evidence against him. After hearing the Crown’s response, the court rose for lunch. The submissions were considered over the adjournment.[20]The court sat at 2.05. The Crown then applied for the jury to be discharged. The judge declined to deal with that application until he had delivered his ruling on the application by S. He concluded that some of Margerrison’s evidence against S should be subject to the same direction which he had already indicated in the cases of O and J. He then returned to the Crown’s application for the discharge of the jury. Counsel for the Crown suggested that the judge’s rulings had “emasculated” the prosecution case. The jury would be involved in impossible mental gymnastics if they were directed to disregard the significant part of Margerrison’s evidence, and in any event the jury had been out of court since the close of the prosecution’s case on the previous Thursday, 6 December. The gap was too long. The judge refused this application. The precise narrative of subsequent events that day needs no further elaboration, but, as we understand it, by its end the judge decided, in effect, that the jury should be directed to disregard all Margerrison’s evidence in respect of the 8 items listed in paragraph 18.[21]The judge gave the prosecution overnight and two hours the following morning to consider those rulings, and their impact on the trial. The prosecution applied for leave to appeal to this court on the basis that the rulings about Margerrison’s evidence undermined the prosecution’s ability to continue with the case. The Crown accepted that if leave were given, and the Court of Appeal upheld the judge’s rulings, the defendants would be acquitted. The judge took that submission as a concession that notwithstanding his own previous ruling that there was a case to answer, the Crown was conceding that there was none. The judge examined the history. He declined to grant the Crown leave to appeal. He considered that the jury could be given proper directions and the case could continue to a fair conclusion.[22]We must highlight three features of this narrative.(a) The prosecution’s present application is based on what is said to be an inconsistent approach to the case by the judge, and the contrast between his rulings that there was a case to answer and that the continuation of the trial would not represent an abuse of process, and his subsequent decision about the admissibility of Margerrison’s evidence. The submission overlooks the importance of the late correction of the date of the Madresfield Court burglary which was made after the conclusion the evidence for the prosecution. If the judge’s rulings that the case should continue had been given after the full impact of the corrected information had been assimilated and drawn to his attention, so that they were fully before him when he made his rulings, the Crown’s submission would have considerable force. The reality, however, is that their actual and potential significance was not drawn to his attention until after his ruling. As the judge himself recognised, the sequence of these events was most unusual, and unsatisfactory, but that did not absolve him from his duty to give an appropriate ruling when invited to do so. He could not reject well founded submissions on admissibility on the basis that he had already ruled that the case should proceed.(b) The decision that there was a case to answer was made at a time when it was understood that all Margerrison’s evidence would be placed before the jury. The subsequent rulings undoubtedly deprived Margerrison’s evidence of virtually all, if not all of its force. The effect was to return the prosecution to the position in which it was placed before Margerrison’s evidence became available, when it had taken the principled decision that the evidence was insufficient to justify prosecuting any of these three defendants. In that sense, and for that reason, the prosecution was maintaining a logically consistent position.(c) To the extent that there was some implicit criticism of the prosecution’s good faith when the judge was invited to discharge the jury, we reject it. It is, of course, true that the trial could have proceeded on the basis of the judge’s directions that Margerrison’s evidence should be disregarded. Without that evidence, the defendants undoubtedly stood a very good chance of acquittal. Indeed the likelihood is that the prosecution would have had to offer no further evidence. In one sense therefore it is true that the prosecution was seeking to deprive the defendants of the benefit of the jury’s verdict at the trial. However the submission ignores the further reality, that any such verdict would be based, if the prosecution were correct, on incomplete evidence and in disregard of admissible evidence of which the jury would have been deprived by the judge’s incorrect ruling. Jurisdiction[23]This summarises the context in which the issues in this appeal must be addressed. The first submission by the defendants is procedural. In short, the Crown is not entitled to pursue this application. The argument has two distinct limbs. First, the application is brought outside ss 58-61 of the Criminal Justice Act 2003; it is directed at an evidentiary ruling, as defined in ss 62-63 of the 2003 Act, which has not yet been brought into force. Second, the application falls outside the relevant Criminal Procedure Rules because the prosecution failed to comply with the express terms of rule 67 (2(1)).[24]Sections 58-61 and ss 62-63 of the 2003 Act fall within the statutory arrangements granting the prosecution additional rights to apply for leave to appeal to this court in trials on indictment. As the distinctions have already been closely analysed in R v Y [2008] EWCH Crim 10, we shall limit ourselves to a brief summary. Ss 58-61 created a general right of appeal in respect of “rulings” made in trials on indictment. Although, as noticed by this court in R v Thomson and Hanson [2006] EWCA Crim 2849 and R v Y, it is correct that the expression “terminating ruling” does not appear in these sections, the heading to this particular group of provisions is “B. Terminating Rulings”, so it is convenient to use that phrase as a shorthand description. Ss 62-63 are specifically limited to “qualifying evidentiary rulings”, made in connection with offences specified in part 1 of schedule 4 of the Act. These may be described as the more serious offences, and for example, do not include either burglary or handling stolen goods. An evidentiary ruling is a ruling which “relates to the admissibility or exclusion of any prosecution evidence” (s62 (9)) whereas a ruling within ss 58-61 is defined and includes, but is not limited to “a decision, determination, direction, finding, notice, order, refusal, rejection or requirement”. This definition is in very wide terms, and because of its width, was held to apply to an order in relation to an adjournment which would, unless successfully appealed, have effectively terminated the trial in R v Clarke [2007] EWCA Crim 2532.[25]Further distinctions between the two species of interlocutory appeal, and the different consequences following from them both, are clearly analysed in R v Y. In essence, an unsuccessful appeal against a terminating ruling brings proceedings against the defendant to an end. The Crown must agree formally that if it does not succeed, the acquittal of the defendant will follow. In any event, even if the appeal were to succeed, the court may nevertheless, in the interests of justice, order an acquittal. In relation to evidentiary rulings, the first pre-condition is that the ruling must “significantly weaken” the prosecution’s case. Whether the prosecution appeal succeeds or fails, the next stage of the process is that the trial must be resumed, or re-started, unless the Crown indicates that the prosecution will not be continued, in which case an acquittal will follow.[26]It was suggested on behalf of the defendants that because R v Y was concerned with a charge of murder, a qualifying offence for the purposes of an “evidentiary ruling”, the reasoning did not apply to a case of burglary or handling stolen goods, because evidentiary appeals in relation to these offences were not qualifying offences for the purposes of ss62-63. So even if these provisions were in force, they would not apply to the charges faced by these defendants. Moreover, because in R v Y it was conceded that without hearsay evidence, there was no prima facie case against the defendant, the court did not address s58(7). If it had, it would have been appreciated that the condition precedent to the application of ss58-61 was that the court had ruled that there was no case to answer. It was particularly emphasised that s58(7) should not be used to explain or elucidate s58(1), and if not, it followed that the judge concluded there was a case to answer without Margerrison’s evidence, the Crown could not bring the present application to this court. We do not agree. The rulings to which ss58-61 apply are, as the definition section makes clear, and Clarke established, not confined to such rulings. The restriction on the application of ss62-63 to qualifying offences does not begin to effect the construction of ss58-61, which applies to all trials on indictment.[27]In any event it was submitted that the judge’s ruling in relation to Margerrison’s evidence was evidentiary only, and the relevant statutory provisions applicable to it are not in force. Although the argument was deployed with Mr Michael Parroy QC’s customary forcefulness, it is answered by the reasoning of this court in R v Y. In essence it comes to this: where a ruling about the admissibility of evidence will have the effect of bringing the trial to an end, the ruling itself may be a terminating ruling within s74. In R v Y the ruling in question related to a decision that prosecution evidence was not admissible.

Lord Justice Hughes observed:

“It does not follow from the fact that this is an evidentiary ruling that it is not also a ruling which “relates to one or more offences included in the indictment” and thus is within s58 if the Crown is prepared to give the s58(8) agreement that if the appeal fails the Defendant must be acquitted. As a matter of ordinary language this clearly is a ruling which relates to the counts of the indictment. It relates to them because it is a decision about what evidence is admissible to the Crown in its attempt to prove them… there is thus no reason why a single ruling should not qualify both as a s58 ruling in relation to a count on the indictment (assuming the Crown agree to an acquittal if the appeal fails) and also as an evidentiary ruling under s62, in respect of which the right of appeal will be broader if implemented. In the ordinary language of the criminal trial, many rulings made daily by trial judges can properly be described both as relating to counts on the indictment and as being evidentiary.”
[29]We were invited to perceive some conflict between the approach of this court in R v Y and the earlier decisions in R v Thomson and Hanson and R v Clarke. We can find none. This issue arose directly for decision in R v Y. It provides clear and binding authority that a ruling as to the admissibility of evidence may be the subject of an application under ss58-61 provided the remaining conditions which apply to a terminating ruling are also fulfilled.[30]Applying these principles to the present appeal, it is clear that the directions the judge intended to give the jury in relation to Margerrison’s evidence would, in effect, would have deprived the Crown of the essential plank of their case. Without the core of Margerrison’s evidence, consistently with the position the Crown had taken throughout the investigation and subsequent prosecution, the Crown could not have continued with the prosecution of any of these three defendants. That was and remains the Crown’s position.[31]It was further suggested that it would be wrong for the Crown to be able to bring a trial to an end merely because the consequences of judicial rulings damaged the prosecution’s case. If the implication of the submission was that the Crown was somehow abusing the process now available under ss 58-61 of the 2003 Act, the short answer is that this court would not countenance any such abuse. The interests of justice would be paramount and would prevail. The prosecution would be halted.[32]Under the Criminal Procedure Rules 2005 (as substituted) rule 67.2(1) provides that the Crown must “tell the Crown Court judge of any decision to appeal (a) immediately after the ruling against which the (Crown) wants to appeal.” Rule 67.5(1) imposes a requirement that the appellant seeking permission to appeal must (a) apply orally, with reasons, immediately after the ruling against which “the appeal is to be brought”. The essence of the argument in this case is that the Crown did not “immediately” take the steps required by the rules.[33]The relevant statutory provision is s58(4) makes it a pre-condition to any successful application for leave to appeal by the Crown that:
“(a) following the making of the ruling, it (i) informs the court that it intends to appeal or (ii) requests an adjournment to consider whether to appeal, and (b) if such an adjournment is granted, it informs the court following the adjournment that it intends to appeal” (i) informs the court that it intends to appeal or (ii) requests an adjournment to consider whether to appeal, and (b) if such an adjournment is granted, it informs the court following the adjournment that it intends to appeal”
[34]The sequence of events described earlier in the judgment reveals that once the judge had decided that the jury should be directed to disregard all Margerrison’s evidence on the eight listed topics, he allowed the prosecution overnight and some time the following day to consider their rulings and their impact on the trial. Thereafter, it applied for leave to appeal. Given the extraordinary sequence of events on the previous day, this was sufficiently “immediate” for the purposes of the rules. As a matter of practical reality, we can find no breach of statute or rule. Accordingly, in our judgment, the arguments on jurisdiction fail. The Application[35]We now come to the merits, such as they are, of this application. The problem for the Crown is that, in reality, its case against all three defendants simply fell apart. Before Margerrison’s evidence became available, there was as the prosecution has accepted, no case against the defendants. By the end of the prosecution case at trial, there was a very serious doubt whether the incriminating evidence he gave against these defendants was related to the offence which the jury was considering. Once his evidence was undermined in this way, the judge was entitled to conclude that the jury should be directed to ignore the bulk of his evidence. His earlier ruling that there was a case to answer, and that Margerrison’s evidence should be admitted, no longer applied. Just because the process of the trial became muddled, the judge was obliged to reconsider the ruling relating to Margerrison’s evidence, after his earlier rulings. Having examined Mr Reid’s careful written and oral submissions, we are wholly unpersuaded that the judge’s final ruling in relation to the admissibility of Margerrison’s evidence was wrong, or erroneous, or unreasonable. Accordingly no basis for interfering with it has been demonstrated. The application will be refused. We shall direct an acquittal.`

Cited in 3 later judgments