S & Anor, R v [2009] EWCA Crim 85

Case No 200900007-D5Case No 200806863-D5[2009] EWCA Crim 85
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 27 January 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
MRS JUSTICE DOBBS
MR JUSTICE GRIFFITH WILLIAMS
Between
R E G I N ACrownv
Between
SL
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr A Mitchell QC appeared for AppellantsMr R Whittam QC and Mr C Coltart appeared for Crown
J U D G M E N T

LORD JUSTICE MOSES:

[1]On 22 December 2008 at the Crown Court at Southwark, the Honorary Recorder of Westminster, HHJ Rivlin QC, gave a preliminary ruling following a preparatory hearing pursuant to section 29(1) of the Criminal Procedure and Investigations Act 1996. He ruled that, as a matter of law, the defence of necessity was not available to the two defendants, S and L, and therefore could not be left to the jury. He also gave a ruling in relation to section 19 of the Private Security Industry Act 2001, which is no longer material.[2]The ruling that the defence of necessity could not be advanced by these defendants is now the subject of an appeal by both these two defendants pursuant to the provisions under section 35(1) of the Criminal Procedure and Investigations Act 1996. The Honorary Recorder gave permission to appeal.[3]We should stress at the outset that the appeal is based upon criticisms of an immaculate judgment, carefully and cogently prepared, if we may say so, by the Honorary Recorder. He has set out, with possibly but one exception, a clear and correct statement of the law of necessity.[4]The circumstances in which the judgment came to be made need not detain us for long. It is contended by the Security Industry Authority, SIA, that on certain days from March 2006 onwards at specific locations the defendants deployed unlicensed guards. There is unlikely to be any dispute but that there were guards employed at the places identified in the counts on the indictment, although we note with a certain despair that those are not yet the subject of agreed facts. That is not the real issue in the case. The defendants have sought and persist in seeking to contend that the reason why unlicensed guards were deployed at those times in those places was because there was no alternative means for protecting those who might be passing by or those who were in those premises from death or serious injury other than by protection to be afforded by the guards. So grave was the risk of death or serious injury on the dates identified in those counts that these defendants had no choice but to deploy their employees, unlicensed as they were.[5]There is no dispute but that, in order for there to be material fit for a jury to consider as to whether that defence is made out, there must be material upon which a reasonable jury might conclude, firstly, that there was no possibility of obtaining a licence before the threat became so acute in relation to the premises where unlicensed guards were deployed that the defendants were compelled to deploy those unlicensed guards in that area. Absent material fit for a jury to consider that there was no such possibility, the defence is hopeless and should not be left to the jury. But that is not an end of the matter. The second feature in respect of which there must be material fit for a jury to consider is that the decision to deploy an unlicensed guard and the deployment of that guard was directly caused by an immediate or imminent threat of death or serious injury in the location where that guard was deployed. Thus, there must be evidence fit for a jury to consider that the decision taken to deploy an unlicensed guard in the area identified in the count of the indictment was directly caused by the threat; were it not so, then the essential underlying rationale of the defence, namely that the defendant was compelled to break the law by the threat of death or serious injury to him or those for whose safety he was responsible, would be undermined.[6]Thirdly, there must be evidence fit for a jury to consider that there was no means which reasonably could be taken to escape the risk posed by the threat other than by the deployment of an unlicensed guard in the employment of these particular defendants.[7]There has been a dispute and a challenge to the judgment of the Honorary Recorder as to the nature of the threat which is said to have caused the action to deploy an unlicensed guard. The judge took the view that there had to be a specific threat, and that a general threat would be insufficient. We agree to this extent: that absent a specific threat, it might be difficult for a defendant to identify material fit for a jury, but the point should not be taken too far. In the judgment of the judge at paragraph 36, he referred, citing the submissions of the prosecution, to the need to show that there was a specific identifiable threat. We accept that, absent such a threat, it is unlikely to be possible to show that the threat was sufficiently grave or, more importantly, was the cause of the particular action that, absent the availability of the defence, would amount to a criminal offence.[8]But it is possible to conceive of circumstances where a continuing threat to a certain area, for example the centre of London, was believed reasonably to be so imminent as to compel those responsible for the safety of that area to act in breach of the law. The nature of the threat, specific or general, may go to the gravity of the threat and in particular, as we have indicated, to causation, but, as a matter of law, the mere absence of a specific identifiable threat will not necessarily lead to the conclusion that it was not imminent nor immediate.[9]However, the judge concluded that, firstly, the evidence was not such as to be fit to be left to the jury because it would not be possible to conclude that a licence may not have been obtained in time. The judge based himself upon the fact that it had been known at least for a year that the Agency would require licences pursuant to the Private Security Industry Act 2001, and thus these defendants had had ample time to submit their applications. On the contrary, so the prosecution submit, the absence of the required licence was entirely the result of a voluntary decision made by the defendants not to license their guards since there would inevitably either be a very long lead-in time during which the operatives might be poached by other employers, or alternatively, there would be no reason to employ licensed guards so far in advance of the commencement date. The judge excluded that aspect of the defence case on the basis that he had heard, during the course of a three-week hearing during which the defendants had contended it was an abuse of process to prosecute a number of witnesses, from the Security Industry Authority cross-examined on behalf of these defendants. He had concluded that the evidence did not show that it was not possible for the defendants to obtain a licence, but rather it was, as we have indicated, the result of their commercial decision not to do so. He used those findings as the basis for his conclusion that there was no material fit for a jury to consider. Further, he based his decision upon the absence, as we have indicated, of a specific and identifiable threat. The threats as disclosed were far too amorphous and vague.[10]In order to consider whether the ruling was correct, we must recall the background which led to it being given. The purpose of the preparatory hearing was to ensure that there was a properly controlled hearing during which fanciful and speculative defences were not raised, for the purposes of confining the trial to a reasonable time, and of more importance, ensuring that the jury focused upon the real issues. No complaint has been made, nor could be made, as to the propriety of conducting such a preparatory hearing, but there are dangers. The main danger is as to the evidential or factual basis upon which any ruling could be given.[11]It must be recalled that there was no evidence at that stage. Frequently such hearings are held and are advisable where the issue is whether, as a matter of law, a certain defence is open to a defendant. A paradigm is the case of Quayle [2005] 2 Crim App R 34, in which the Court of Appeal considered defences that had either been allowed to go before the jury or which the judges had declined to leave. They concerned defendants who asserted that they had grown cannabis under duress of circumstances so to alleviate the pain of sufferers for example of multiple sclerosis. The court ruled that such a defence was not capable of amounting to a defence in law. The ruling was made on the basis of facts put at their highest in favour of the defence. Cases such as this are, however, far more problematic since it becomes extremely difficult to pin down a defence which has, as it appears quite deliberately, adopted a more protean form. Once you seek to pin it down in one place, it shifts and emerges in a rather different form. This is the problem with which the judge was faced.[12]The defence case statements developed. The judge sought further particulars. The prosecution sought further particulars, and each time they got them -- not lengthy, not in detail, but slightly more fleshed out. It is unnecessary to read through all the defence statements if only to spare the blushes of the defence. It is startling, if a defence of necessity is to be deployed, to read in one of the defence statements that L, the director of the defendant company, wishes to argue, amongst other things, that he was unaware that unlicensed guards were to be deployed, a defence that does not sit in any manner or form with the defence "I was compelled to deploy unlicensed guards". But, by the time of the ruling, in various different forms, it was plain that the defendant wished to contend that he believed that there was no alternative for the protection of the life or limb of those passing by or within the premises for whose safety he was responsible other than that he should direct that an unlicensed guard should provide protection. That emerges, for example, from a late defence statement at paragraph 18 in which the defendants say:
"The defendants will adduce at trial direct evidence confirming offences of serious violence which occurred in fact or were imminently expected to occur at various premises which they guarded. Evidence will be before the jury from individuals with experience of large corporations who will give evidence as to the real and severe risk and occurrence of violence involving serious injury. This will incorporate direct evidence of the use of weapons such as guns and knives with the clear attendant risks associated therewith."
[13]The difficulty with that later defence statement is that it appears to have little, if anything, to do with the terrorism on which the defendant had apparently previously relied. In an earlier defence statement, it was contended that the defendant had acted in the light of fears of an imminent threat of an attack by terrorists on the premises concerned. Thus, the judge was faced with a developing case and bald assertion as to the risks that were faced, but the defendants had never vouchsafed any detail as to how the decisions came to be made, whether the decisions were in pursuit of a specific decision or a general policy, or when they had been arrived at or the nature of the information in response to which the decision had been made. Absent any such particulars, there was no material upon which the jury could reach a conclusion that there was a realistic, as opposed to a fanciful, possibility that there was no evasive action which could be taken, that there was no possibility of obtaining a licence, that the threats were such that they directly caused the decision, and that had the decision not been taken, there was an imminent threat to the safety of those for whom the defendants were responsible.[14]The defence statements, whichever versions one reads, say nothing about the process of the decision-making, the detail of the threats as they were understood to be, and importantly, why no alternative action might reasonably have been taken to preserve the safety of those for whom these defendants were responsible. It must be recalled that these defendants are not the police, are not the armed services, and they therefore have to explain why it was that there was no alternative means other than the deployment of their own employees in protecting these premises.[15]In the state of that evidence, we can well understand how it was that the judge reached the conclusion that he did. But the difficulty and the prior question is as to the status of the evidential material at the time. How was the judge to identify whether there might be material fit for the jury before the trial commenced? This is obviously a real difficulty. It is accepted that the requirement under section 6A(ca) of the Criminal Procedure and Investigations Act 1996 was not in force in relation to these proceedings. But the judge had to have regard, as did all those responsible for the conduct of the proceedings, of the overriding objective in the Criminal Procedure Rules. Therefore he was entitled to sufficient information to be satisfied that, before the defence was embarked upon, there was material which, if evidence was given, might amount to a defence. The exiguous defence statements were not such as to amount to that material. But without any means of fixing upon a version of facts upon which he was to give his ruling of law, it was difficult for him to say upon what factual basis he could reach a conclusion of law, namely whether the defendant was entitled to rely upon the defence of necessity.[16]The judge's remedy in the first place focused upon the procedure for obtaining the licence. He had ruled, as we have already indicated, in the abuse hearing that the defence could not show that they could not have obtained the licence. Indeed, the evidence was all the other way. But his ruling in that earlier hearing was not and could not be dispositive of the issue in front of the jury. True it was, he was not shown any material by the defence as to whether the system was such that no licence could have been obtained, but Mr Mitchell QC says that, on cross-examination of prosecution witnesses, there is more than a fanciful possibility that it will be revealed that a licence could not be obtained.[17]Suspending for a moment our disbelief as to whether there is any realistic chance of doing so, it is difficult both for this court, still more for the judge, to say: "That cannot be done; you are not entitled to do so" because he himself had heard evidence and had reached a particular factual conclusion. The evidence is, so the defence assert, that the SIA were so overwhelmed and so short of available staff that a licence application made at a proper time in relation to a particular employee could not have led to the grant of a licence.[18]The difficulty, as we see it, is that the judge allowed his own factual conclusions to be the basis for concluding it could not be done before the jury. That seems to us to be dangerous. We are all aware of cases where, at first, cross-examination seems a quixotic task, but in which witnesses reveal more than might have been foreseen. What the judge in effect was saying to the defence is:
"You are not allowed to cross-examine on issues on which I have already reached a factual conclusion"
. That seems to us a very dangerous basis for making a preliminary ruling, shutting out such a defence from being advanced. It does seem to us that that was the basis upon which the judge reached his conclusion as to the first point, namely whether there was material fit for a jury to consider the proposition that there was no possibility of obtaining a licence by these defendants.[19]However, he was on more fruitful ground when he considered the other aspects of the defence. Of course, if there was no material on that first point fit for a jury, the defence is at an end. But even if there was material on which a jury might conclude that there may have been no possibility of obtaining a licence, that would not avail a defendant who could not show that his decision to deploy the particular employee in that area was caused by the threat. I have already indicated in one respect how far the defence statements fall short of any intention to establish that fact. Merely referring to the general risk of raids with knives or robbery is miles away from establishing an imminent threat of death or to limb caused by terrorist attacks.[20]Indeed, the prosecution took up the challenge, and before the judge gave his ruling, required from the defendants details of the circumstances in which the decision to deploy was reached; the names of any other individuals with whom that decision was reached; the date upon which the decision was reached and the venue of the board meeting in question; and the current location of any contemporaneous documentation, such as board minutes, generated as a result. The silence in response was deafening. Not only were no such details forthcoming, but there was silence as to the details of the threats of which the defendants had become aware which triggered the decision to use unlicensed guards. On that basis, the judge rightly, as we have indicated, ruled that the defence was not open to the jury. But the difficulty was that that ruling was not just that on the material indicated in the defence statement the defence would not be available; it was a direction to the defence that they were not entitled to deploy the defence at all. Unless the judge could be satisfied that that was all the evidence would ever amount to, he was in effect depriving the defendant of a defence in respect of which he would be able, so he asserts, to adduce material.[21]It is in that unsatisfactory situation that the defendants now, at a late stage, contend that there will be further material to show that Mr L was in a position to assess the risk because it is now said, in a note dated 25 January 2009, that Mr L was peculiarly well placed to understand the immediate risk of terrorism due to his own military background (unspecified); communications with the police, military and security services on a continuing basis (unspecified); knowledge (unspecified) that there would be further attacks; knowledge that retail locations had been identified as targets (unspecified); knowledge that for the first time military personnel were being deployed on the streets to combat this imminent threat; a belief in and expectation of a major terrorist event involving a retail store such as that experienced by L in Manchester with the IRA bombing; evidence of the threat level and Joint Intelligence Committee material -- the threat level had already been referred to in an earlier defence statement as a general published statement by the then Home Secretary. The Joint Intelligence Committee material again remains unspecified. No doubt, Mr L feels inhibited by the Official Secrets Act, although how he came by the material is again unspecified. There is material from Operation Griffin, in the course of which the police apparently sought assistance to combat terrorism from the retail sector (again unspecified); and evidence from a specific retailer of the threat of serious injury to employees on a daily basis.[22]In relation to the latter element, we were told today -- Mr Mitchell QC was good enough to tell us -- that there will be evidence from clients as to the specific threats to their particular premises, which meant that they could only be protected by employees from this particular organisation. Again, all of that is unspecified.[23]The difficulty with the ruling the judge gave is that he could not be satisfied on the material before him that that was all the material the defence was going to deploy, and it has now emerged that there is further material that the defendants seek to deploy. Quite what it adds up to, absent any particulars, is difficult to discern, but of one thing we are quite clear: that there is a danger in ruling out a defence for all time without any possibility of knowing that that is all the defence intend to adduce.[24]The judge did not require the defendants to say what their evidence was on which they sought to rely in order to make good their contentions, and there may be difficulties in some cases in a judge adopting that method of control. But we would be far from ruling out the possibility that that would be an appropriate way for a judge to act in pursuance of the Procedure Rules in circumstances where, absent disclosure of that material, no one could be satisfied that the defence was not purely fanciful and bogus.[25]With hindsight, it may well have been that the judge ought to have required the defendants to say whether their evidence would amount to any more than those elements that had been disclosed in those defence statements, rather than making the understandable assumption that, since nothing more had been said, there was nothing more to say.[26]The new material now before us, by virtue of the judge's ruling, cannot be deployed. We think that the judge was not in a position to rule out the possibility of the defence being able to use material, if it exists, to make good the points it now relies upon in so recent a note. If evidence was given that there was an immediate or imminent threat of a major terrorist attack on a retail store the safety for which these defendants were responsible, and there was no other way of avoiding the risk to those in the store or passing by, then it is conceivable that the defence would be available. But we, like the judge, are in no position to say one way or another without having far greater detail as to the evidence -- still less not having heard the evidence. Further, we cannot say whether there may or may not be material before the jury as to the impossibility of obtaining a licence, because we stress again, unless there is material that a licence could not be obtained, the whole defence fails long before any questions of belief or the reasonableness of that belief arises.[27]The upshot is, therefore, that we do not think that the judge was in a position to rule out the defence for all time, although we emphasise we quite understand the basis upon which he did make that ruling at that time and are far from saying he was wrong to do so. But, he could not, merely on his own factual conclusions, prevent the defence from seeking to establish the first point, namely an opportunity to obtain a licence, unless and until he could be satisfied that there was no possibility of adducing evidence as to the second and third element, namely as to the cause of the decision and there being no possibility of avoiding the danger asserted in any other way. It is now said that there will be such material.[28]Our conclusion, therefore, is that, at this stage, the defence ought not be shut out from advancing the defence of necessity. But the control and management of these proceedings does not stop there. We have already pointed out that the material set out in the latest note dated 25 January 2009 was laid before the judge. Indeed, some of the defence statements went so far as to refer, as we have already indicated, to general fears of robbery, theft and other violence which seem miles away from the case the defendants now seek to adopt.[29]The remedy lies in the judge's control of the proceedings by seeking particulars of what material it is suggested the defence may adduce in relation to those matters specifically set out at paragraph 5. During the course of this judgment we have already indicated the absence of particularity. The judge would be perfectly entitled to restrict or indeed refuse cross-examination in relation to the first point absent some indication of a basis for saying there will be material called in support of the propositions set out in paragraph 5. It is not for us to exercise case management over the case when so experienced and respected a judge has control of it, but there is nothing to stop the judge requiring those particulars and written material in support of them before he allows the defence to be deployed; otherwise he may reach the conclusion that the matter is purely speculative. If there is such material, at least the categories of that material can be shown to the prosecution and to the judge, if he wishes to see it.[30]The next way of controlling this case is in relation to the cross-examination. The judge is entitled to know how long the case will in fact take, how long the jury will be detained and what the programme is. In order to be satisfied of those matters, he will need to be able to assess how long the defence should be allowed to cross-examine any particular witness, to what issues it will go, and what day or days will be occupied with the defence case. That too will require identification of particular documents or witnesses that the defendants seek to advance. In that way, the question as to whether this is merely a fanciful defence or otherwise may emerge.[31]The cross-examination, designed to adduce material fit for a jury to consider that there was no possibility for a licence to be obtained, is likely to come early on in the trial. Once the judge has heard that cross-examination, it is perfectly open to him to say that there is no material upon which a jury could reasonably conclude that there was no possibility of obtaining a licence. If he reaches that conclusion, he should say so and that there will be the end of the defence since it will be a precondition of the defence that there is such material.[32]In short, there are many ways upon which a trial can nowadays be controlled, consistent particularly with the overriding objective of the Criminal Procedure Rules, other than merely saying to a defendant:
"On this defence case statement you have no defence of necessity"
. As we have already emphasised, the danger of doing so is that you may shut out a defendant where there is no agreed factual basis for reaching that conclusion.[33]There never were, for understandable reasons, any agreed facts, and the more the prosecution complain of the paucity of the material they were given, the more the judge exposed the inadequacies of the defence statement, the more likely it was that the defendant would say:
"Now you have pointed that out, I have in fact got more"
. The danger of that continuous unending and expensive approach can be curtailed.[34]But with regret, because of the care and understandable concern of this experienced judge -- despite that -- we are compelled to the conclusion that the appeal ought to be allowed and that the defendant, within the constraints we have already identified, ought to be allowed to pursue at this stage his defence of necessity.[35]As we have already said, there was another point about the Act, which now that counsel has read again the provisions, he does not seek to pursue.[36]MR WHITTAM: Could I simply mention reporting in relation to this being an appeal from a preparatory hearing?

LORD JUSTICE MOSES: Yes.

[38]MR WHITTAM: It would obviously help all parties if there was --

LORD JUSTICE MOSES: You can certainly have a transcript, but why should there be any restrictions on reporting? There cannot be any prejudice.

[40]MR WHITTAM: It is ordinarily present under the Act. We do not seek it providing that any report is anonymised as the listing is today.[41]MR MITCHELL: Two things, my Lord: provided the appellants are anonymised, which they usually are, I have no objection.

LORD JUSTICE MOSES: I think you will need that transcript.

[43]MR MITCHELL: We will need the transcript, in any event. My Lord, the defendants both are privately funded. Would your Lordships consider it appropriate to award costs from central funds, to be taxed?[44]MR WHITTAM: The only observation is, had there been more detail as requested, we would not be here, and we did ask for it.

LORD JUSTICE MOSES: This is an application for costs out of central funds. In our view, the way this defence has emerged makes it quite inappropriate for the public to pay in any respect the costs of today.

[46]Thank you all, very much.