Johnson & Ors, R v [2009] EWCA Crim 649

[2009] EWCA Crim 649Case No 2008/01347/2008/01356/2008/01354/2008/01351/2008/01348/C2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/04/2009
Before
LORD JUSTICE MAURICE KAYMR JUSTICE STADLENMR JUSTICE HOLROYDE
Between
RCrownJOHNSON & ORSDefendant
Mr Michael Parroy QC for O’LoughlinMiss Tracy Ayling QC for Chad JohnsonMr Paul Dunkels QC for NichollsMr Mark Evans QC for Albi JohnsonMr Alun Jenkins QC for Ricky JohnsonMr Paul Reid and Mr Simon Burns for CrownHearing Hearing date : 4 March 2009
Judgment
[1]On 11 February 2008 in the Crown Court at Reading Danny O’Loughlin, Richard ‘Chad’ Johnson, Ricky Stephen Samuel Johnson, Michael Nicholls and Albi Johnson were convicted of conspiracy to commit burglary with intent to steal. They were sentenced to substantial terms of imprisonment. O’Loughlin and Chad Johnson (as we shall refer to him, in order to avoid confusion) also pleaded guilty to an offence of handling stolen goods. All except Ricky Johnson have leave to appeal against conviction. Ricky Johnson was refused leave by the single Judge but now renews his application. Some of those who have leave also seek to renew their applications in relation to grounds upon which they were refused leave by the single Judge.[2]Between 9 April 2005 and 25 April 2006 sixteen burglaries were carried out at large country houses and commercial premises in or just outside the triangle bordered by the M4, the M5 and the M40. They were notable for the quantities and value of the items that were stolen including, in particular, antiques, silver, porcelain and jewellery. At trial, the case for the prosecution was that the 16 burglaries were manifestations of a single conspiracy. There was and is a close relationship between the five men charged with the conspiracy. Ricky Johnson is the father of Chad Johnson and Albi Johnson. O’Loughlin and Nicholls are related to the Johnsons by marriage. At the material time, O’Loughlin, Chad Johnson and Nicholls were living at the Cleeve Prior travellers’ site near Stratford on Avon. Ricky Johnson was a frequent visitor to the site. The allegation was that Cleeve Prior was the main base of the conspiracy. The five men all had close and detailed knowledge of the area within which the burglaries occurred and also had a close network of local contacts. It was not alleged that any of them had participated in every burglary. For their part, the defendants at trial maintained that they were not involved in any of the burglaries and were not parties to a conspiracy. It is convenient to refer to the main features of the evidence upon which the prosecution relied in relation to each of the men.

O’Loughlin

[3]The first burglary took place at Woolley Park on 9 April 2005. Two days later, O’Loughlin gave information to the police which led them to some of the stolen property. The second burglary took place at the commercial premises of J H Thorpe on 29 July 2005. Two televisions which had been stolen during that burglary were recovered from the possession of O’Loughlin in October 2005 and March 2006.[4]The evidence linked O’Loughlin to three of the vehicles which were said to have been used in some of the burglaries. On 20 October 2005 he was seen in Subaru J550 VM0 with Chad Johnson, Nicholls and Albi Johnson at Countrywide Stores. The allegation was that they were there for nefarious purposes although no burglary actually occurred. That vehicle had been purchased on 9 October 2005 by the use of false details. It was involved in the next two burglaries which occurred at Ramsbury Hill House on 21 October and Warneford Place on 24 October. Later on the night of 24 October it was found burned out in a field near Cheltenham. On 10 November 2005 Subaru M213 MM0 was seen outside the home of O’Loughlin’s sister. The following day it was seen by a police officer at a time when it was occupied by five males wearing balaclavas. The vehicle got away from the officer. It was involved in a burglary at Broombank Caravan Park on the same day. On 18 January 2006, O’Loughlin was seen with Chad Johnson, Nicholls and an unidentified man in Subaru L67 YVV. It had been purchased the previous day by a man who gave false details. It was used in the course of an attempted burglary on 19 January 2006. It was the subject of a police chase on 20 January 2006 before it was finally found abandoned on 21 January 2006.[5]There was also mobile telephone cell site evidence in relation to O’Loughlin. Two mobile phones were attributed to him. One was placed within a few miles of the burglary at Ramsbury Manor in February 2006 three hours before the offence occurred and within a few miles of the ‘deposition site’ of items taken during that burglary on the following day. The second telephone was used within a few miles of burglaries at Woolley Park and Edgington House on 25 April 2006. Some months after his arrest, a black hood with goggles was seized from his caravan.

Chad Johnson

[6]Items of stolen property from some of the burglaries were recovered from Chad Johnson’s caravan. A television stolen from J H Thorpe on 29 July 2005 was recovered on 10 October 2005, in respect of which he pleaded guilty to an alternative count of handling stolen goods. Also on 29 July 2005 a burglary was carried out at Treasure Trove and, on 2 November 2005, a quantity of china and glassware said to have been stolen in that burglary was recovered from Chad Johnson’s caravan. In addition, items stolen from Robert Welch Studios on 1 October 2005 were recovered from a communal outhouse adjacent to the caravan.[7]Chad Johnson was seen in or linked to four Subaru vehicles which were said to be connected with the burglaries. On 9 October 2005 he was seen standing by Subaru L279 HKM at Cleeve Prior. On 12 October 2005 this vehicle was involved in the Ombersley Court burglary. As in the case of O’Loughlin, he was seen at Countrywide Stores on 20 October 2005 in Subaru J550 VMO, along with Nicholls and Albi Johnson. The following day he was seen with the vehicle at Cheltenham racecourse where an antiques fair was being held. There were others in the vehicle at that time who hid their faces. The vehicle was used in the burglary at Ramsbury Hill House that evening and in the burglary at Warneford Place three days later. On 18 January 2006 he was seen in Subaru M213 MMO. It was involved in a burglary at Cottage Garden Nurseries on the following day when it was the subject of a high speed police pursuit. He was also seen in Subaru L67 YVV on 18 January 2006 in Cheltenham in the company of O’Loughlin, Nicholls and others. It was involved in a police chase two days later before it was found abandoned on 21 January. The prosecution alleged that it was the second vehicle used at Cottage Garden Nurseries on 19 January.

Ricky Johnson

[8]The prosecution case against Ricky Johnson centred upon three Ford vehicles. On 23 and 28 November 2005 he was seen driving a Ford Focus which was also seen at Cheltenham racecourse at the time of the antiques fair. On 7 October 2005 he was seen driving Ford Mondeo Y491 KUY which vehicle was seen on 11 October at Ombersley Court when (it was said) it was involved in a reconnaissance the day before the burglary. The vehicle was sold on 20 October 2005. The occupant of Ombersley Court gave evidence that, on the evening before the burglary, he had seen someone go over the wall at his property before getting into a car. He thought it was a Nissan and he noted down the registration number as Y42 KUY. On 31 January 2006, Ricky Johnson was seen in Ford Focus Y365 VDA (incorrectly recorded by a witness as Y365 DVA) near Compton Graze. It was alleged that this was part of a reconnaissance prior to the burglary. Nicholls[9]Again, the principal evidence against Nicholls related to vehicles said to be linked to the burglaries. He too was seen in Subaru J550 VM0 at Countrywide Stores on 20 October 2005, prior to its use in the burglaries at Ramsbury Hill House on 21 October and Warneford Place on 24 October, shortly after which it was found burnt out in a field near Cheltenham. It was Nicholls who purchased Subaru M213 MM0 on 3 November 2005 using false details. At 12.30pm on 8 November it was caught by a speed camera three miles from Spetchley Park which was burgled at around 1.00pm that day. Four or five men in balaclavas were seen driving away from the scene at speed. On 24 March 2006, a balaclava belonging to Nicholls was seized from a caravan at Cleeve Prior. On 10 November 2005 a Subaru was seen in the vicinity of Walton Hill with four or five men beside it acting suspiciously, some of them looking over the boundary wall of a manor house. When they realised they were being watched, they got into the car and drove away. The witness noted the number as M213 MM0. Later that day a Subaru with MM0 in its registration was seen within 10 miles of Broombank Caravan Park which was burgled that afternoon. On 16 November 2005 a Subaru with MM0 in its registration was seen outside Cheltenham Hospital, an incident to which we shall return in relation to Albi Johnson. On 17 November 2005 Nicholls was seen moving M213 MM0 at Cleeve Prior and by 25 November it had been disposed of. On 18 January 2006 Nicholls was driving Subaru L67 YVV in Cheltenham in the company of O’Loughlin, Chad Johnson and others. On 20 January it was involved in a police chase before it was found abandoned on 21 January. It was said to have been used in the attempted burglary at Cottage Garden Nurseries on 19 January. On 11 October 2005 Ford Mondeo Y491 KEY was seen at Ombersley Court on an alleged reconnaissance. It was also seen being driven by Nicholls on 12 October, the day of the burglary. It was sold on 20 October. Albi Johnson[10]On 20 October 2005 Albi Johnson was one of those seen in Subaru J550 VM0 at Countrywide Stores. The same vehicle was involved in the burglaries at Ramsbury Hill House on 21 October and Warneford Place on 24 October. On 5 November 2005 he was seen driving Subaru M213 MM0 which had been bought by Nicholls and was involved in the Spetchley Park burglary two days later.[11]On 16 November 2005 there was a burglary at Stanton Harcourt. The householder encountered a burglar within the premises. The burglar wore a balaclava and was carrying a crow bar. When the householder shouted, the man ran into the first floor bedroom and slammed the door. As a matter of inference, he left the premises by means of defenestration. Shortly afterwards Albi Johnson was admitted to Cheltenham Hospital with serious leg injuries. A Subaru with MM0 in its registration was seen outside the hospital.

The principal ground of appeal: bad character evidence

[12]At the trial, the prosecution applied under section 101 of the Criminal Justice Act 2003 for leave to adduce selected convictions of all the defendants except Ricky Johnson. The application did not relate to all their previous convictions, nor did the judge allow reference to be made to all the convictions which were the subject of the application. In due course, the admitted convictions went before the jury in an agreed form. We reproduce it here in that form. AGREED SUMMARY OF PREVIOUS CONVICTIONS (1). Danny O’Loughlin & Richard ‘Chad’ Johnson joint conspiracy to burgle and steal Danny O’Loughlin Guilty plea 21.6.07 Bristol Crown Court 13.9.07 Conspiracy to Burgle and Conspiracy to steal from commercial premises of metal 13.4.06-20.6.06 Specifically includes Attempt Burglary of Airco Metals, Finchampstead, Berkshire on 25.4.06 Richard ‘Chad’ Johnson Guilty plea 15.6.07 Bristol Crown Court 13.9.07 Conspiracy to Burgle and Conspiracy to steal from commercial premises of metal 13.4.06-20.6.06 Conspiracy to Burgle: 1. Attempted Burglary TTI Surface Engineering, Glos 17.6.06 (a commercial warehouse containing metal) 2. Admitted assisting in the sale of stolen metal on 22.5.06 from Airco Metals, Finchampstead (a commercial warehouse containing metal) 3. Conspiracy to steal on the basis that he conspired with others to steal from Rugby Cement on 15.5.06 (2). Danny O’Loughlin Danny O’Loughlin Guilty pleas 15.10.99 Winchester Crown Court Burglary dwelling X 2 1. Burglary of safe and contents from a dwelling 2.1.97 2. Burglary of antique furniture from a dwelling 30.6.98 (3). Michael Nicholls Michael Nicholls 18.8.06 Guilty pleas at Gloucester Crown Court Attempt Theft with Albi Johnson; Dangerous Driving Joint offence of Attempted Theft of metal from a skip on 4.4.06 at Mounstar Metals, Glos with 6 others and dangerous driving thereafter trying to escape from the police. This offence was committed during course of current allegation. (4). Albi Johnson Albi Johnson 14.2.03 Guilty Plea No.3 Reading Crown Court 1. Burglary with intent to steal- commercial 2. Taking a conveyance without authority 3. Burglary dwelling 10.7.01 – Attempted burglary with number of others of an ATM from Wine Bar in Lambourne; Vehicle used in the burglary was a stolen Subaru; 22.2.02 Burglary of cottage in Bagnor, nr Newbury (china, antique tables and clocks) Albi Johnson 27.8.03 Guilty plea Cardiff Crown Court Commercial Burglary 14/15.3.02 – organised burglary with others of garage in Monmouth; cash, cigarettes and mobile top up cards; Stolen vehicle Subaru also used. Albi Johnson 18.8.06 Guilty plea Gloucester Crown Court Attempt theft with Michael Nicholls Joint theft offence on 4.4.06 as above. This offence was committed during the course of current allegation.

The statutory provisions

[13]The applicable provisions of the Criminal

Justice Act 2003 are as follows:

“101 (1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if – … (d) it is relevant to an important matter in issue between the defendant and the prosecution … (3) The court must not admit evidence under subsection (1)(d) … if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. (4) On an application to exclude evidence under subsection (3), the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged. 103 (1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include – (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence … (2) Where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of – (a) an offence of the same description as the one with which he is charged, or (b) an offence of the same category as the one with which he is charged. (3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case. (4) For the purposes of subsection (2) – (a) two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms; (b) two offences of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State. (5) A category prescribed by an order under subsection (4)(b) must consist of offences of the same type.” … (d) it is relevant to an important matter in issue between the defendant and the prosecution … (3) The court must not admit evidence under subsection (1)(d) … if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. (4) On an application to exclude evidence under subsection (3), the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged. (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence … (2) Where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of – (a) an offence of the same description as the one with which he is charged, or (b) an offence of the same category as the one with which he is charged. (3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case. (4) For the purposes of subsection (2) – (a) two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms; (b) two offences of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State. (5) A category prescribed by an order under subsection (4)(b) must consist of offences of the same type.”
[14]Pursuant to section 103(4)(b), the Secretary of State has promulgated the Criminal Justice Act 2003 (Categories of Offences) Order 2004. Part 1 prescribes a “theft category”. It includes burglary, aiding and abetting burglary and incitement to burglary but not conspiracy to burgle.[15]At trial, the defence opposed the application to adduce bad character evidence first on the ground of non-compliance by the prosecution with Part 35 of the Criminal Procedure Rules 2005. There is no doubt that there had been non-compliance but the judge exercised his discretion to excuse it and to extend time. He gave cogent reasons for so doing and that part of his ruling is no longer challenged on this appeal. The dispute now relates to his substantive decision to grant the application. The judge’s reason can be summarised in this way: i) Although the prosecution sought to adduce bad character as evidence of propensity to commit the offence charged, the evidence (save for the previous convictions for conspiracy to burgle in the case of O’Loughlin and Chad Johnson which fell within section 103(2)(a)) could not be admitted on that basis because the prosecution could not satisfy section 103(2)(b). The statutory instrument there referred to does not include conspiracy to commit an offence of dishonesty (although it does include aiding and abetting and incitement to such an offence). Therefore, “the previous convictions for [substantive] dishonesty offences may not be admissible on a conspiracy trial on the basis of propensity, since the order does not provide for them”. ii) However, propensity is not the only important matter in issue between a defendant and the prosecution. Bad character is also relevant to “whether [a defendant] would participate in a conspiracy to burgle”, it being admitted that the burglaries in question did in fact take place. iii) Section 103(2)(b) does not apply to that “important matter in issue” and the evidence of bad character (as reduced by the judge) could go before the jury on that basis. iv) Although evidence of bad character should not be admitted so as to bolster an otherwise weak case, the case against the defendants was not weak. v) He would not exclude the evidence on the ground of unfairness pursuant to section 103(3) or section 78 of the Police and Criminal Evidence Act 1984.

The grounds of appeal

[16]The first, generic ground of appeal advanced on behalf of the four appellants whose bad character was adduced is that, having ruled that the evidence could not be adduced on a propensity basis, the judge erred in law by holding that it could be adduced as relevant to the issue of “whether [a defendant] would participate in a conspiracy to burgle”. That, it is submitted, amounts to no more than propensity, differently articulated.[17]Beyond that, the same four appellants seek to advance arguments specific to their individual cases. Ricky Johnson, in respect of whom no bad character evidence was adduced, does not have leave to appeal. His case is that, if the appeals of the other four succeed, his conviction is unsafe because he has been unfairly prejudiced by the wrongly admitted evidence of bad character of his co-defendants. He also seeks to advance other grounds.[18]We shall return later to the other grounds of appeal, but it is appropriate to deal first with what we referred to as the “generic” ground.

The generic ground: propensity or propensity by another name?

[19]We say at once that we accept the submission that “whether [a defendant] would participate in a conspiracy to burgle” is synonymous with the concept of propensity. To the extent that the judge thought otherwise, we consider that he was wrong. It follows that, upon this analysis, the issue by reference to which the bad character evidence was admitted was in truth propensity. The question then becomes: was this error fatal to the judge’s ruling? In our judgment, it was not.[20]The error of the judge was to consider that the prosecution could not establish propensity because conspiracy to burgle is not an “offence of the same description” or an “offence of the same category” as burglary or another substantive offence of dishonesty. The true position is that the relevant propensity “may (without prejudice to any other way of doing so”) be established by an offence of the same description within the meaning of section 103(2)(a) or an offence of the same category within the meaning of section 103(2)(b). However, as the words we have emphasised make clear, other ways of establishing propensity are not excluded. What section 103(2) does is to provide permissive and simple ways of establishing propensity. Where they do not apply, propensity may still be established by other means. So if two men have individual records for relevant offences of burglary, there is no obvious reason why those records should not be used to establish a relevant propensity if they are later charged together with an offence of conspiracy to burgle. It would be absurd if their previous individual records could be used to establish propensity if they were later charged with a joint offence of burglary (as the appellants concede that they could) but they could not be used to establish propensity if the later charge were one of conspiracy to burgle.[21]If the judge had not fallen into error in concluding that propensity was off the agenda, we have no doubt that he would have admitted the bad character evidence on a propensity basis. It is obvious that, having decided to admit the evidence on a basis which we have found to be synonymous with propensity, he would have admitted it on a propensity basis but for the error we have identified. It follows that the error, by itself, is not material to the safety of the convictions.

The summing up on bad character

[22]Although the primary focus of the four appellants whose bad character was admitted, is directed to the ruling of the judge (and this seems to have been the basis upon which the single judge granted them leave to appeal), they also seek to complain about the directions on bad character given by the judge to the jury in his summing-up. We shall consider this criticism before dealing with the more specific complaints referable to the bad character evidence in respect of the individual appellants. At this point we are concerned only with the general directions. They were devised with great care and after an extensive dialogue with counsel. The jury were also provided with a document containing the directions.[23]This is how

the judge directed the jury:

“In this case there is no dispute that the burglaries occurred and the real issue in each defendant’s case is whether or not he was part of the alleged single conspiracy to commit burglary. The previous convictions you have been told about are evidence for you to consider in deciding whether a defendant is more likely to have committed the offence you are considering because he has previously demonstrated that he is prepared to break the law by being involved in the offences of conspiracy to steal, or burglary or theft or attempted theft, as the case may be … A man’s convictions are only background and do not tell you whether he has committed the offence with which he is now charged. What really matters is the evidence in relation to that offence. So be careful not to be unfairly prejudiced against any defendant by what you have heard about his convictions. The prosecution allege these men were not just associating because they are related but because together they were involved in a single conspiracy to burgle commercial or private premises. The defence contend that all the case shows is association between the defendants because of their family connections. That is an important issue for you to consider … Bear in mind that there are some differences between the type of offences for which they have convictions and these allegations … You must decide to what extent, if at all, any defendants bad character helps you when you are considering whether or not he is guilty as charged. It is again an area where you can use your common sense when considering matters. But bear in mind that a man’s bad character cannot of itself prove that he is guilty. It would therefore be wrong to jump to the conclusion that he is guilty just because of his bad character. So you must not assume any of these defendants is guilty … just because he has these convictions and is therefore a person of bad character. Also, one man’s bad character does not have a bearing on another man’s character. You have regard to all the evidence in the case of which a man’s bad character is a part. You have heard about such matters because it may assist you in resolving an issue in the case, namely whether you can be sure the particular defendant you are considering, given the type of convictions he has and bearing in mind the other evidence against him, participated in this alleged conspiracy to burgle.”
[24]The first thing to notice is that, in the words we have emphasised in the first paragraph of the directions, the language used is unequivocally that of propensity. On behalf of the appellants, it is submitted that this is at variance with the judge’s ruling that led to the admission of the bad character evidence. However, as we have demonstrated, propensity is the basis upon which the judge could and, indeed, would have admitted the evidence but for his error about section 103(2) and conspiracy.[25]As to the remainder of the general directions on bad character, it is submitted that, in one way or another, the judge ought to have been more protective of the defendants in his warnings. We do not accept this submission. We consider that the general tenor of the directions and the detailed terms in which they were expressed were fair, balanced and appropriate. There was no misdirection and there is no basis for complaint.[26]We now turn to specific matters about the bad character evidence as they related to the individual appellants.

O’Loughlin

[27]The admitted previous convictions of O’Loughlin comprised two dwelling house burglaries to which he pleaded guilty in 1999 (one of which concerned antique furniture) and offences of conspiracy to burgle and conspiracy to steal metal from commercial premises to which he pleaded guilty on 21 June. As to the latter, the pleaded dates were 13 April 2006 to 20 June 2006, the overt acts included an attempted burglary at Airco Metals on 25 April 2006 and one of the co-conspirators was Chad Johnson who also pleaded guilty to conspiracy to burgle on a basis which included assisting in the sale of metal stolen from Airco Metals. Significantly, the date of the offence at Airco Metals’ premises was the same date as the final date of the alleged of conspiracy in the present case (25 April 2006), the day on which the evidence in this trial embraced burglaries at Woolley Park and Edgington House, which are quite close to the premises of Airco Metals.[28]Mr Michael Parroy QC submits that there was an obvious risk of prejudice to O’Loughlin, bearing in mind that the previous conviction for conspiracy embraced offending with Chad Johnson and offending on the same day and in the same area as the Woolley Park and Edgington House burglaries. He submits that, in order to neutralise the prejudice, the judge ought to have given a fuller and clearer warning to the jury which, amongst other things drew attention to differences, in particular, the fact that Airco Metals was concerned with the theft of metal whereas Woolley Park and Edgington House were country house burglaries. Moreover, O’Loughlin was disadvantaged because, although the judge wove into his bad character directions specific references helpful to Chad Johnson, Nicholls and Albi Johnson, pointing out their cases on differences, he omitted to do so in relation to O’Loughlin.[29]We suspect that this latter point may have been the result of oversight, but whether it was or was not, we do not consider that it can sustain a well-founded complaint. It was abundantly clear from the passage dealing with Chad Johnson that there was a point being made about differences and we have no doubt that it featured prominently in the closing speeches of counsel for all four defendants of proven bad character. We have already referred to the overall fairness of the general directions on bad character. In our judgment, they were as protective of O’Loughlin as they needed to be and the judge went on to refer back to them and the proper approach when he summarised O’Loughlin’s evidence much later in the summing-up. We consider the safety of his conviction to be unassailable.

Chad Johnson

[30]In the case of Chad Johnson, the admitted bad character evidence was limited to the offences to which he, along with O’Loughlin, pleaded guilty in June 2007, which overlapped with the present allegation and which included Airco Metals (as to which his basis of plea to conspiracy to burgle or steal was that his overt act was concerned with the onward sale of the stolen metal, albeit that he was party to the conspiracy). On his behalf, Miss Tracy Ayling QC adopts Mr Parroy’s submissions and seeks to underwrite them by reference to authorities (Freeman and Crawford [2008] EWCA Crim 1863, Bullen [2008] EWCA Crim 4) which explain the need for careful direction. As we have said, we are entirely satisfied that the summing up was properly founded on propensity, notwithstanding the terms of the earlier ruling, and that it was fair and unobjectionable. In the case of Chad Johnson,

the judge interpolated into his general bad character direction:

“the [previous] burglaries were not of private premises and so it is said you may have a doubt that he would burgle such premises”
. This was a fair addendum and one not available to O’Loughlin whose previous convictions for domestic burglaries were before the jury. We are entirely satisfied that the conviction of Chad Johnson, who did not give evidence at trial, is safe.

Nicholls

[31]So far as Nicholls is concerned, evidence of his bad character was limited to an offence of attempted theft of metal from a skip on 4 April 2006, committed jointly with Albi Johnson, together with an offence of dangerous driving in which Nicholls was the driver and which was committed when trying to evade the police after the offence of attempted theft. The metal in the skip weighed in the region of 3000 kilos. The date of the offences fell within the period of the present conspiracy.[32]Mr Paul Dunkels QC submits that an offence of attempted theft from a skip is an offence of an entirely different scale and nature from the conspiracy to burgle in the present case and that, in the circumstances, it should not have been admitted on a propensity or any other basis. He submits that the previous conviction does not establish propensity at all or, if it does, “his having such a propensity makes it no more likely that he is guilty of the offence” (section 103(1)(a)). He also submits that the case against Nicholls is weak and that, relying on the authority of Hanson [2005] 2 Cr App R 21, evidence of bad character ought not to be admitted to bolster a weak case.[33]We do not accept that the evidence against Nicholls can be characterised as weak. We have summarised it in paragraph 9, above. It connected him with three of the Subaru vehicles and a Ford Mondeo. It was Nicholls who actually acquired M213 MM0 by dishonest means on 3 November 2005. That vehicle, and the others with which he was connected, were seen at or near more than half a dozen of the targeted premises close in time to the incidents. On one occasion, the occupants were wearing balaclavas. A balaclava belonging to Nicholls was recovered from a caravan at Cleave Park. In our view, the circumstantial evidence against him was quite cogent. He did not give evidence at the trial.[34]The bad character evidence in Nicholls’ case was limited to the joint offence of attempted theft with Albi Johnson. Although that does not evidence propensity with the same force as the convictions of O’Loughlin and Chad Johnson for conspiracy to burgle, it cannot be said that the demonstrated propensity “makes it no more likely that he is guilty of the offence” of conspiracy to burgle. The jury would be entitled to consider the bad character evidence as establishing a propensity which ruled out innocent explanations of how he came to be seen where he was seen, in the company in which he was seen and with vehicles that were used in some of the burglaries. The bad character evidence established the commission of an acquisitive offence of dishonesty with Albi Johnson within the timespan of the alleged conspiracy and dangerous driving away from the scene. Whilst we accept that not all the evidence relied upon against Nicholls in relation to the alleged conspiracy was equally strong, there was a pattern which implicated him and it was permissible for the jury, if they thought fit, to rely upon the evidence of the previous conviction as establishing a propensity to commit the offence. The “kind” of offences referred to in section 103(1)(a) is not limited to offences of the same description within the meaning of section 103(2)(a) and offences of the same category within the meaning of section 103(2)(a). Propensity is essentially a matter for the trial judge. This Court will only interfere when his decision to admit the evidence was plainly wrong or Wednesbury unreasonable: see Hanson, paragraph 15. We are not persuaded that a basis for interference has been established on behalf of Nicholls.[35]So far as the summing up was concerned,

the judge said this in the course of his bad character direction:

“In … Nicholls’ case … it is said that [the joint offence of attempted theft] is not the same as a conspiracy to burgle or just because he has a conviction for dangerous driving, when seeking to avoid being arrested by the police, does not mean he was the driver of any Subaru that made off from the police in this case.”
[36]That, it seems to us, put the bad character evidence fairly. In one sense it was quite favourable to Nicholls because the judge did not refer specifically at that point (as he had done earlier) to the fact that Albi Johnson had been the co-defendant. If he had done so, there could have been no complaint.[37]We would add that Mr Dunkels’ submissions, and indeed those of other counsel, would have been more persuasive in the context of the admissibility of similar fact evidence in the past but they do not support an argument against the admission of bad character evidence pursuant to sections 101 and 103 of the 2003 Act in the same way.

Albi Johnson

[38]In addition to the joint offence of attempted theft with Nicholls, Albi Johnson’s previous convictions admitted in evidence included an attempted burglary of commercial premises with others in 2001 when a stolen Subaru was used in the commission of the offence, a residential burglary in February 2002 when china and antiques were stolen and a commercial burglary in March 2002 when, again, a stolen Subaru was used.[39]Mr Mark Evans QC submits that Albi Johnson’s position is different from that of his co-accused because he was the youngest of the defendants, he lived not on the site at Cleeve Prior but in Cheltenham and he was not concerned in the acquisition or ownership of the vehicles said to have been used in the course of the present conspiracy to burgle. All these points are correct but do they assist in establishing that, in his case, the judge was plainly wrong or Wednesbury unreasonable in admitting the bad character evidence? In our judgment they do not.[40]There were essentially three pieces of evidence upon which the prosecution relied as against Albi Johnson: presence with O’Loughlin, Chad Johnson and Nicholls at Countrywide Stores on 20 October 2005, when they were in possession of Subaru J550 VM0, which was also involved in the burglaries at Ramsbury Hill House and Warneford Place on 21 and 24 October; driving Subaru M213 MM0 on 5 November 2005 (which vehicle was used in the Spetchley Park burglary two days later); and the events at Cheltenham Hospital on the night of 16 November 2005.[41]This latter part of the evidence provided the most colourful and hotly disputed aspect of the trial. We have already related (paragraph 11, above) how the prosecution sought to link Albi Johnson’s admission to Cheltenham Hospital to the burglary which had taken place at Stanton Harcourt a short time before. Mr Evans has made strong submissions to the effect that the evidence of time and distance between the burgled premises and the Hospital makes it unlikely that Albi Johnson’s injuries were sustained at Stanton Harcourt. However, we consider these submissions to be essentially jury points. Mr Evans is constrained to concede that the time and distance points do not make the prosecution contention impossible. Albi Johnson gave evidence that his injuries were caused when he climbed over a wall on the way to his mother’s house. However, he appears to have told the staff in Hospital that he had fallen from the roof when fixing his sister’s satellite dish. Moreover, the evidence included reference to a Subaru with MM0 in its registration being outside the Hospital at about the time that Albi Johnson was admitted. When a police officer approached it, the group of people near it dispersed and the Subaru pulled away, accelerating rapidly. The officer had earlier received a report of such a vehicle being driven dangerously. In the light of all this, we do not consider the case against Albi Johnson in relation to Stanton Harcourt to be weak, as Mr Evans submits.[42]There was undoubtedly a respectable case against Albi Johnson to be left to the jury. We do not consider that it was plainly wrong or Wednesbury unreasonable for the judge to have admitted the bad character evidence to which we have referred. It was incumbent upon him to give careful directions in relation to it and this he did. Mr Evans suggests that, if Albi Johnson was involved at Stanton Harcourt, it could have been on a one-off basis rather than as part of the single conspiracy which the prosecution alleged and that the judge did not give adequate directions upon this hypothesis. Again we disagree. The judge referred specifically in his bad character direction to a “single conspiracy to burgle commercial or private premises”. That is the basis upon which all defendants were convicted, although it was never alleged that every conspirator took part in each and every one of the sixteen incidents upon which the prosecution relied. We reject the criticism of the summing up in respect of Albi Johnson. We are satisfied as to the safety of his conviction.

Ricky Johnson

[43]There was no bad character evidence in the case of Ricky Johnson and he does not have leave to appeal against conviction. He was refused leave by the single judge but now renews his application. He is represented by Mr Alun Jenkins QC (who did not appear at the trial). He makes three submissions. First, that if the appeals of the co-accused are allowed because bad character evidence ought not to have been admitted or was the subject of misdirection, his conviction is unsafe because he has been unfairly prejudiced by that evidence. We need say no more about this because we have found that it was not plainly wrong or Wednesbury unreasonable to admit the bad character evidence, even though the judge was in error (favourable to the defence) in one aspect of his ruling. Secondly, it is submitted that, because of a breakdown in the relationship between Ricky Johnson and counsel then representing him, he was unfairly inhibited in his decision not to give evidence. We have read the material on this issue and we regard the submission to be utterly unarguable. Thirdly, Mr Jenkins seeks to criticise the summing up, essentially on the basis that the judge did not sufficiently define the conspiracy charged or explain the alternative possibilities of a plurality of conspiracies or a series of burglaries which were not manifestations of a single conspiracy. We are wholly unimpressed by this submission. The summing up correctly defined the conspiracy charged and made it clear that no one was to be convicted unless it was established that he was a party to that single conspiracy. The written directions to the jury were very clear. The approach now (but not then) advanced on behalf of Ricky Johnson would have muddied the waters in a wholly unnecessary and inappropriate way. We find no arguable basis upon which Ricky Johnson could now establish that his conviction is unsafe.

Conclusion on conviction

[44]It follows from what we have said that we find the convictions to be safe. We dismiss the appeals against conviction of O’Loughlin, Chad Johnson, Nicholls, and Albi Johnson. We refuse Ricky Johnson leave to appeal against conviction.

Sentence

[45]We turn to the applications which each of the 5 men has made for leave to appeal against his sentence.[46]The judge in his sentencing remarks set out very clearly the reasons why this conspiracy to commit burglary was a very serious offence: it involved the burgling not only of commercial premises but also the burgling at night of isolated country homes which were targeted because the Applicants knew they contained antiques, silver and other items of considerable value. There was, plainly, careful planning and advance reconnaissance; balaclavas or other headgear were worn to prevent identification; suitably high-powered, 4-wheel drive cars were used which had been stolen shortly before the burglaries and were burnt out or abandoned soon afterwards. He pointed out that in several instances the value of the property stolen was in the hundreds of thousands of pounds, and in one case the loss was said to be well over £10 million. Very little of that property had been recovered, another indication of the level of professionalism shown by the conspirators. Those factors led the judge to conclude that this must have been one of the most serious examples of a conspiracy to burgle ever to come before the court, given the amounts involved. He went on, however, to indicate that he did not regard it as a case in which he should pass the maximum of 14 years’ imprisonment, because there had not been any use of violence in the course of any of the burglaries.[47]The judge referred to the case of R v Gibbs [2000] 1 Cr App R (S) 261, in which this Court upheld a sentence of 10 years’ imprisonment following guilty pleas by an Appellant who had committed 7 high-value offences of burglary and theft in isolated houses over a period of more than 2 years. This Court described the sentence as being at the top of the permissible bracket for a large number of offences committed by a professional burglar who had pleaded guilty. It should however be noted that in that case, although the offences were professionally planned and executed, the aggregate value of the property stolen was about £46,000; and, of course, that Appellant had the mitigation of having pleaded guilty. A sentence of 10 years after guilty pleas implies a starting-point of 15 years in total for the offences which were admitted.[48]The judge then considered the cases of the individual Defendants, and passed the following sentences of imprisonment:a. O’Loughlin: 11 years, with 2 years concurrent for an offence of handling stolen goodsb. Chad Johnson: 11 years, with 2 years concurrent for an offence of handling stolen goodsc. Ricky Johnson: 8 yearsd. Nicholls: 10 yearse. Albi Johnson: 9 years[49]Dealing first with some points which apply to all 5 Applicants, we take the view that the judge was entirely correct in his assessment of the gravity of this offence. The case of Gibbs supports that conclusion. The judge was entitled to sentence each Applicant, as he did, on the basis of involvement in the burgling of homes: he was not obliged to proceed in relation to any of the Applicants on the basis that his involvement was limited to the burgling of commercial premises. In our view, he gave proper weight to the fact that none of the burglaries involved any use of violence. Apart from that feature, and such arguments as could be advanced to the effect that some Applicants were implicated in fewer burglaries than others, there was in truth scant mitigation available to any of the Applicants. Long prison sentences were inevitable.[50]O’Loughlin was born on 1 April 1976 and so is now 32 years old. He has on 17 previous occasions appeared before the courts and has been sentenced for a total of 31 offences: these include 17 of burglary, theft and other offences of dishonesty. He was already serving a sentence of 7 years’ imprisonment imposed on 13 September 2007 for the offences of conspiracy to burgle and conspiracy to steal to which we have referred when considering the bad character evidence.[51]The principal ground of appeal in O’Loughlin’s case is that the sentence is excessive when taken in conjunction with the sentences already being served. The judge did not make the sentence of 11 years consecutive to the existing sentence, and so his sentence took effect on the day it was passed. By that date, 11February 2008, he had been in custody since 17 June 2006, a period of about 1 year 8 months which does not count towards this sentence. Counsel submits on his behalf that the sentences already being served had been imposed for offences which the Crown contended really formed part of a single course of crime, and which had only been dealt with separately for reasons of case management. On that basis, it is submitted the effect of the prison sentence effectively means that the single course of crime has resulted in a sentence very close, and too close, to the statutory maximum of 14 years.[52]In our judgment, there is no merit in that submission. There were good reasons for the separate trial of the other offences, and it is not disputed that those offences merited – even on guilty pleas - a total of 7 years’ imprisonment. The fact that they were viewed by the Crown as part of a single course of crime does not mean that the Crown were obliged to limit the charges to a single count of conspiracy. The judge was of course bound to have regard to the totality of the existing sentences and the present sentence, but he was not in our view obliged to set a limit to that totality of 14 years less a substantial discount for the fact that no violence was used. We take the view that the judge properly had regard to the totality in passing the sentence he did.[53]The other grounds of appeal are to the effect that the judge gave insufficient credit for the absence of any violence, threat or intimidation, and for the part played by this Applicant in facilitating – as we have already described - the return of some stolen property. We are satisfied that the judge gave due weight to those matters of mitigation, and was entitled to pass the sentence he did for this Applicant’s high level of involvement in the conspiracy.[54]Chad Johnson was born on 3 July 1975 and so is now 33 years old. He has been sentenced on 19 occasions for a total of 35 offences, including burglary, theft and other offences of dishonesty. He too had been in custody since mid-June 2006, and was currently serving a sentence of 42 months imposed on 5 March 2007 for an offence of conspiracy to defraud, and (following a successful appeal) a sentence of 4 years 6 months consecutive to the 42 months imposed on 13 September 2007 for the offences of conspiracy to burgle and conspiracy to steal to which we have referred when considering the bad character evidence. The present sentence took effect on the day it was passed, and so overlaps to a substantial extent the existing sentences.[55]On his behalf, submissions similar to those in O’Loughlin’s case are made about the totality of the sentencing. For the same reasons as in O’Loughlin’s case, we are not persuaded by them. His other grounds of appeal are sufficiently answered by the general points we have made above. The judge explained that although this Applicant did not have as bad a record for burglary as O’Loughlin, he too was involved at a high level in this conspiracy. The judge was correct in our view to pass the same sentence on each of them.[56]Ricky Johnson was born on 15 July 1953 and so is now 55 years of age. He has been sentenced on 22 occasions for a total of 57 offences, including one burglary (long ago), theft and other offences of dishonesty. His most recent sentence was one of 3 years’ imprisonment imposed on 10 December 1997 for an offence of conspiracy to defraud. His last custodial sentence before that had been as long ago as 1984.[57]On his behalf it is submitted that the sentence was excessive having regard to the sentences on the other Applicants, his age and antecedents, and in particular the fact that his role was limited to reconnaissance. We are satisfied that the judge took all those matters into account. The flaw in the submission, as it seems to us, is that in the circumstances of this case reconnaissance, far from being a minor part in the offending, was a very important aspect of the professional nature of the crime. The conspirators targeted houses which they (rightly) expected to contain very valuable items, and they took considerable care to plan and prepare for the burglary and theft of those valuable items. Accordingly, even on the basis for which counsel contends, the role played by this Applicant was a very significant one.[58]Nicholls was born on 20 January 1979 and so is now 30 years old. He has been convicted on 17 occasions of a total of 28 offences, including 10 of burglary, theft and other offences of dishonesty. He was already serving sentences totalling 45 months’ imprisonment imposed on 18 August 2006 for the offences to which we have referred when dealing with bad character (attempted theft: 15 months; dangerous driving: 15 months consecutive), and on 1 December 2006 (theft: 15 months consecutive). In his case also, the present sentence took effect on the day it was passed. However, since the existing sentences had by that date almost been completed, there was little overlap, and counsel submits that for all practical purposes this was a consecutive sentence.[59]His principal ground of appeal is that, taking into account the sentences already being served, the sentence was excessive having regard to his actual role in the conspiracy, and that the judge put him too high in the scale of offenders. It is submitted that this Applicant was a worker rather than a leader, and that if all matters had been dealt with at the same time, the totality of the sentence would have been lower. The argument based upon the effect of sentences already being served carries more weight in this Applicant’s case than it does in the cases of O’Loughlin and Chad Johnson, and we have given careful thought to the submissions cogently made by Mr Dunkels QC. In the end, however, we are unpersuaded: the judge clearly had in mind the effect of the existing sentences, and having conducted the trial he was the person best placed to determine the gravity of this Applicant’s part in the conspiracy.[60]Albi Johnson was born on 21 September 1984 and so is now 24 years old. He is therefore the youngest of the Applicants, a fact which the judge correctly took into account. He has been sentenced on 10 occasions for a total of 19 offences, including burglary and theft. His most recent sentence of imprisonment was one of 2 years imposed on 18 August 2006 for his part in the attempted theft (also involving Nicholls) to which we have already referred when dealing with bad character. The judge rightly pointed out that that offence had been committed within a short time of his recovering from the injuries he sustained when leaving the scene of the burglary at Stanton Harcourt. That sentence, however, had been completed by the time he was sentenced for this offence.[61]On his behalf, counsel accepts that the jury must have been sure that this Applicant committed the Stanton Harcourt burglary, but submits that any finding of further involvement in the conspiracy could only be a matter of speculation. From that starting-point, counsel submits that a sentence of 9 years for what was in effect a single burglary, albeit a serious one, was manifestly excessive. In our judgment, however, the judge was entitled to sentence on the basis that the Stanton Harcourt burglary was not the only active participation which had been proved. We have referred above to the evidence of this Applicant being seen with fellow-conspirators, and relevant vehicles, on dates shortly before other burglaries: the judge was entitled to draw inferences as to his level of involvement from that evidence.[62]For the reasons which we have briefly explained, we remain unpersuaded by the individual grounds of appeal. Having rejected those, we have stepped back to look again at the overall sentencing in this case, and the extent to which the judge – having conducted the trial – distinguished between the Applicants when it came to sentence. In our judgment he was correct to view this conspiracy as coming near to the top end of the scale of such offences, and justified in the distinctions he drew between the individuals convicted of it. We do not regard any of the sentences as manifestly excessive. In each case, accordingly, we refuse leave to appeal against sentence.