Horden, R. v [2009] EWCA Crim 388

[2009] EWCA Crim 388

Case No 2008/00421/B4

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday 20 February 2009

The Strand

London

WC2A 2LL

B e f o r e:

THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION

(Lord Justice Hughes)

MR JUSTICE WYN WILLIAMS

and

MR JUSTICE HOLROYDE

Between

R E G I N ACrown

- v -

Between

ALAN WILLIAM HORDEN

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Mr T Gilbart appeared for Appellant

Mr R S Gioserano appeared for Crown

J U D G M E N T

[1]By the authority of the trial judge, throughout his two day trial, the appellant was handcuffed both in the dock and when giving evidence. That gives rise to two questions:(1) Was there a sufficient reason for the judge to give that direction?

(2) If not, is the conviction in consequence unsafe?

[2]The law is simple enough. Unless there is sufficient reason (which usually means a real risk of either violence or escape), a defendant ought not to be visibly restrained by handcuffs or otherwise either in the dock or in the witness box. Even if there is some relevant risk, alternative forms of avoiding it ought to be investigated before resort is made to visible restraint. A secure dock; the interposition of prison officers between defendants or either side of a single defendant; police officers inside or outside the courtroom; and in an extreme case, authorisation from the Senior Presiding Judge for armed officers to be in the court building are all alternatives which are routinely employed. The reason for that approach is, we hope, obvious. The jury must be free to decide upon the guilt or innocence of the defendant without the risk of being influenced against him by sight of restraint which in their minds suggests that he is regarded with good cause as being a dangerous criminal. For those general and, we hope, uncontentious propositions, see R v Vratsides [1988] Crim LR 251 and R v Mullen

[2000] All ER(D) 618

[3]The appellant was charged with the possession of heroin with intent to supply. The issue was the allegation of intent. On the first day of the trial the prison escort and dock security contractors, GSL UK Ltd, presented the judge with a written application for the appellant to be handcuffed in court. It read as follows:

"Alan Horden has come out of prison this morning with a marker for escape and has talked of attempting to escape. Has also markers for trying to get drugs passed on visits and had links to the drugs underworld. On a previous court appearance we suspected that he was passed an item whilst in the dock from one of his co-accused. [The judge] witnessed this and instructed police and GSL to strip-search both defendants, although nothing was found. With all this information I request handcuffs remain on during his court appearance today."

[4]The judge made no further enquiries. Counsel for the appellant made submissions against the application. The judge ruled in brief terms. He said:

"The application is allowed. There is clear reason for this man to be prevented from escaping. He shall be in handcuffs throughout his time of these proceedings in open court."

It is to be observed that the judge rested that decision upon the risk of escaping. This was not a case in which there was any suggestion of a risk of violence. There had been a reference in the application to a suspicion that the appellant had either passed or received some form of contraband on a previous appearance in court, but this was not the reason why the judge ruled as he did. Nor could it have been because the appellant was standing trial on this occasion alone. The co-accused who had previously been indicted with him (who included his daughter) had been discharged.

[5]The question was revisited by counsel twice more. Before the trial began, and after the short adjournment, counsel addressed the judge again, having by then obtained access to the two decisions which we have cited. Moreover, there had become available in an adjacent court, if necessary, a secure dock. The judge repeated his ruling. Although we have no transcript of this exchange, we understand that he observed that a secure dock could not cope with any risk of escape whilst the appellant was in the witness box.

[6]On the morning the second day of the trial, counsel was able to tell the judge that the appellant's instructions were that he had not been handcuffed outside court in transit on the second day in the same way as he had on the first. Moreover, the police officer in charge of the case had indicated that he and other police officers could, if required, stand outside the door of the courtroom to guard against any possible risk of escape. However, the judge adhered to his previous ruling. Accordingly the appellant remained in handcuffs, including when he gave evidence before the jury. Those handcuffs were obviously visible to the jury. We would anticipate that they must have been visible in the dock and they certainly were when he gave evidence.

[7]When this case first came before this court, Hooper LJ called for further information as to what lay behind the contractors' original application.

[8]The further information before this court now comes both from the contractors and from the prison from which the appellant had been produced. The information which comes from the contractors is that they had acted upon what had been shown on the Prisoner Escort Record form which accompanies all prisoners when they come into the hands of contractors such as these. The appellant's Prisoner Escort Record, it is said, was "annotated with an escape risk". The information from GSL UK Limited is as follows:

"On 17 December 2007 the PER that accompanied [the appellant] from [the prison] had several risk markers with supporting information, those being: Medical Condition, Escape risk and Drugs and Alcohol with the supporting information stating 'well-known drugs baron, link with the drugs underworld, talked of possible escape in past, drugs on visits, possession of drugs'."

[9]In the information which they have supplied to this court the contractors further say that, so far as they are concerned, whenever there is a risk of an escape risk on the PER an application for handcuffs will be made to the trial judge. They say this:

"In respect of a defendant received into GSL custody whose PER is annotated with an Escape Risk, GSL will prepare and submit a Handcuff in Court application to the court, in accordance with GSL Standard Operating Procedures, with full supporting information prior to the defendant's appearance in court."

We draw attention to the last few words of that proposition.

[10]That assertion by the contractors will come as no surprise to any judge with experience of trying criminal cases. Applications such as this are, it is perfectly clear, made routinely. Frequently, in our experience, they are made with even less supporting facts than this one was. They should not be made without proper investigation or simply so that the contractors can say that the application has been made and the responsibility for a refusal can be fixed upon the court. A degree of judgment needs to be exercised by contractors before making such an application. It is essential that they take at least some steps to find out what the basis is for it in order to see whether or not it is properly justified. And, if made, the applications need to be scrutinised by the judge.

[11]The antecedent history of the appellant indicated that he had a history of serious drug offending. There was no indication of any escape. Although that is not conclusive, it meant that there was nothing in his antecedents which gave support for the present application.

[12]Thanks to the direction given by Hooper LJ, the enquiry which could have been made at the trial has now been made of the prison. It transpires that the "escape marker" (which is simply a tick in a box on the PER) arose on the basis of old information dating back to 1993 and 1996. The "full information" in question did not indicate any record of escape. Nor did it reveal any previous threat to escape. The most that it indicated was that the appellant was thought to be a well-connected criminal who had the means to organise an escape.

[13]We make two things clear. First, the fact that it is wise for the prison to warn the contractors by way of the form PER that there might be some risk of escape does automatically not mean that such a risk is strong enough to justify handcuffs in court. The escort contractors to whom the prison gives the warning will have to handle the prisoner in a number of different situations, including, for example, into and out of vehicles in the open air perhaps (though not always) near to other prisoners, and in some courts in areas not far from where the public may be nearby. The situation in a courtroom is different. Of course a determined attempt to escape is very occasionally made from a court- room, but it is a very public and a very unusual thing to do.

[14]Second, a mere "marker" such as this is not by itself a sufficient basis for an application for handcuffs. If "the full supporting information" which ought to have been before the judge had been, and if the judge had had what we now have from the prison, we have no doubt that he would have refused the application. In those circumstances none of us has any doubt that the judge's decision was wrong and was not sufficiently based on any reliable information. He ought to have been given the information by the contractors. If not given it, he ought to have asked for it.

[15]Before a handcuffs application is made at trial before a jury, there must be proper information providing a basis for it. The situation may be less acute in the case of appearances of a preliminary nature without a jury, or indeed after conviction, but even then physical restraint must be ordered only when truly necessary.

[16]That brings us to the second question which we must consider: is the conviction in consequence unsafe? Given the plain error, we have thought hard about this. However, we have no doubt that on the facts of this case the conviction is perfectly safe. The principal reason for that is that the appellant's character was in evidence before the jury pursuant to bad character applications made by the Crown, which were rightly treated by the defence as irresistible. The appellant was revealed by evidence before the jury to be a several times convicted drug dealer who dealt in Class A drugs. Accordingly, the fact that he was handcuffed will not have damaged his standing before the jury more than that evidence already did.

[17]Secondly, the judge gave an impeccable direction to the jury that the fact that the appellant was in handcuffs was not -- and he repeated not -- to be held against the appellant in any way. It had nothing to do with the merits of the case and was irrelevant to any issue in it. Nor must it enter into consideration by them in arriving at their verdict. We stress that that would not necessarily prevent the conviction from being unsafe if the appellant's character had not been in evidence and if there were no proper basis for the handcuffs.

[18]Thirdly, this was an overwhelming case. The issue was remarkably narrow. The appellant had been arrested attempting to hide 24 separate wraps of heroin. He initially denied that they were his. At trial he admitted that they were and that he had lied when he had said otherwise. He admitted in evidence, first, that the packets were his; and secondly, that he it was who had divided the heroin into 24 separate packages. The explanation which he offered in evidence was that he had been bitten by a dog, that his wounds had turned septic, and that because as he was afraid of doctors as a result of a youthful experience he had bought bulk heroin for self-medication. The explanation that he offered for the heroin being in 24 different packages, as if for supply, was that he had divided it thus with a view to self-administration. It is scarcely surprising that that evidence was disbelieved, although that was for the jury. More importantly, we do not consider that there was any significant risk with the appellant's antecedents before the court that the presence of handcuffs had any impact upon that decision.

[19]In all those circumstances this appeal is dismissed. We are grateful to both counsel for their help. _______________________________