Higgins & Anor v The Crown [2010] EWCA Crim 308

[2010] EWCA Crim 308Case No 2009/04202 D4 + 2009/04655 D4IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CHELMSFORD
HHJ BALL QC
T20097016
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/02/2010
Before
LORD JUSTICE HOOPERMR JUSTICE MACKAYMR JUSTICE GRIFFITH WILLIAMS
Between
Craig John Higgins and Richard Michael Phillip GuyAppellantsThe CrownRespondent
Mr R Bryan for Craig HigginsMr J A Lyons for Richard GuyMr R J Livingston for The CrownHearing Hearing date: 23 February 2010
Judgment
[1]On 3rd August 2009 at the Crown Court at Chelmsford (H.H.J. Ball Q.C.) both appellants were convicted of the following offences: robbery; kidnapping; fraud and assault occasioning actual bodily harm.[2]They appeal their convictions with the leave of the single judge, Penry-Davey J.[3]At the conclusion of the hearing yesterday we announced that the appeals would be dismissed and we now give our reasons for that conclusion.[4]All the offences arose out of the events of the night of Friday 21st to Saturday 22nd November 2008 and concerned the complainant, Clive Sparton, who was 22 years old and lived at home with his parents (14G). The appellants were in the same age bracket.[5]The complainant went to a local bowling alley where he met with a group of recently acquired friends. Present amongst the group were the two appellants. Subsequently, at 00:14 both the appellants and the complainant were captured together on CCTV for a period of about 10 minutes at a Somerfield store attached to a petrol station.[6]Records showed that at about 00:16 £250 was withdrawn from the complainant’s account using his bank card from an ATM at the Somerfield store, followed a minute later by a balance enquiry. At 00:25 a purchase of £85 was made on the card in the store which included £50 cash back. This was followed a couple of minutes later by a further card purchase for £67, including £50 cash back, and then at 00:29 a £12 purchase. At 00:31 there was a failed attempt to withdraw a further £300 from the cash machine.[7]At about 01:30 the card was used again at a Tesco store cash point to withdraw a further £50. There followed a further four unsuccessful attempts to withdraw additional cash from the same machine plus a balance enquiry.[8]The complainant alleged that these transactions were made by the appellants using his bank card. They had assaulted him, stolen his bank card from him at knife point, before forcibly taking him to the Somerfield store. At some point they had parted company. There was a dispute as to whether before the jury were entitled to infer from the manner of the use of the card at Tesco that, by then, the appellants had parted company with him, keeping his card. If the jury reached that conclusion, then that would have provided very strong support for the complainant’s allegations.[9]A number of hours later the complainant arrived at his parents’ home injured. On Sunday 23rd November the complainant attended Accident and Emergency. Hospital records showed that he was complaining of having been assaulted and of having briefly lost consciousness. Black eyes, scratches to his face and a bruised left ear were all noted. The injuries were consistent with his having been hit with blunt objects. They were consistent with the complainant’s account of the evening.[10]The matter was not reported to the police at all until 8th December when the complainant’s father attended the police station to inform them his son had lost his wallet and bank card and a bank statement showed that the card had been used after it had gone missing.[11]On 10th December both the complainant and his father returned to the police station and for the first time the complainant gave an account to the police that the complainant had been robbed at knife-point and forced to withdraw money and make purchases using his card. No names were mentioned to the police albeit that the complainant knew them. In a later statement the complainant continued, in one respect, not to divulge the whole story.[12]Police obtained CCTV footage from the Somerfield shop and from which the two appellants were identified. They were arrested on 15th December.[13]Both appellants had a number of previous convictions which included offences of dishonesty and assault. We return to those later.[14]In interview Guy made no comment to the questions put, other than to state that he, Higgins and the complainant, along with a few others, would go bowling together, where they would all drink alcohol and sniff lots of cocaine. They were together all night drinking and taking cocaine. Nobody was robbed.[15]Higgins gave a full account which was broadly consistent with his evidence at trial save that he failed to mention that they had gone to Tesco to withdraw more money.[16]The prosecutioncase on all counts was that the complainant’s account of events was truthful. The appellants had identified him as a soft-target who would be susceptible to threats and who was in work and therefore in money. In respect of all the counts both appellants were acting together.[17]The defence case was that the complainant’s account was a complete fiction designed to cover up his extravagant expenditure that night and the dishevelled state in which he turned up at home the following morning. His evidence that he had been assaulted, robbed and kidnapped by the appellants was completely untrue.[18]The principal issue for the jury on all counts was whether or not the complainant had provided a truthful account as to what had occurred .[19]We turn to the evidence in a little more detail.[20]The complainant said that at the bowling alley he drank, at most, only three pints of lager. He did not join the others in buying jugs of lager. He did not partake in the use of any drugs that evening nor did he see any sign of anyone else using drugs, although the appellants, with whom he socialized, did appear to be slightly on edge and jumpy. He left early, on his own, as he felt as though he had a cold coming on. On his walk home he went down an alleyway and as he did so he heard footsteps coming up behind him. He was attacked from behind, hit around the head, punched by Higgins which caused his glasses to be knocked off. He was both punched and kneed in the stomach by Guy. Higgins then got hold of him in a bear hug and Guy pulled out a knife. The appellants said that they wanted money for a taxi. Guy searched his pockets, took his mobile phone, found his wallet and took cash and his debit card from it. The interest of the appellants then turned to using the card to withdraw money from a nearby ATM. They then accompanied him, one on either side of him with the knife pressing against his back, to a Texaco petrol station which had a Somerfield store attached. At the shop’s ATM the bank card and PIN were passed to Higgins who then operated the ATM. Guy was holding onto him and threatened to “cut up” both him and his family if the PIN he had provided was wrong. There were two successful transactions at the machine by which the appellants withdrew first £250 (Count 3) and then £50. Guy then entered the shop and shortly after Higgins ordered the complainant into the shop. He was told not to draw attention to himself and he picked up some lagers when ordered to do so by the appellants. He simply watched whilst the appellants carried out a further three transactions using his card at the till. Having then left the shop the appellants walked him to a house. During the walk there were further assaults upon him. He was hit on the head with a lager can, he was kicked, he had a hat pulled down over his eyes so that he could not see where he was, and he was punched so that he fell onto the bonnet of a parked car. At one point he dropped the lagers he was carrying and for which he was hit again. Once at the house he was made to sit on the floor with the hat still covering his eyes. He was taken outside and down some stairs during which he hit his head. Having left the house, Guy said that he had had enough and was “going to sort it out” before running off, leaving the complainant alone with Higgins. Higgins shouted after Guy before running off after him, leaving the complainant on his own. He was battered, frightened, dazed, disorientated and lost consciousness on more than one occasion. He could not account for what happened to him between when he was left by the appellants and when he arrived at home at 08:30. He knew nothing about the card transactions at Tesco (Count 4). He spent most of the Saturday in bed and attended Accident and Emergency on the Sunday as he was still suffering from headaches.[21]In cross-examination the complainant said that he did not take drugs. He had not taken drugs on the night of the incident and had not decided that he would like some more. The police had taken a hair sample to test for whether he had taken drugs that night. We return to that evidence when considering ground 1.[22]Matthew Walker, an assistant at the shop where the transactions took place, recognised the two appellants when they came into the shop. He did not know the complainant whom he described as looking worried. He did not notice any sign of injuries to the complainant. The witness dealt with the second and third purchases made by the appellants. They then made a further request for cash back which was refused and consequently they had to be asked to leave the shop. It was the appellants who were at the till doing all the talking whilst the complainant was just standing back and not saying anything.[23]Martin Metson, the second shop assistant, dealt with the transaction by which the appellants purchased some drink and cigarettes as well as obtaining £50 cash back . The three men appeared to be drunk and wanted to get things done in a hurry. When the appellants were refused a third request for cash back they became very agitated and started arguing with him.[24]Clive Sparton Snr., the complainant’s father, described his son as something of a loner, socially isolated, timid, and lacking in self-confidence. When the complainant arrived home on 22nd November he had black eyes, scratches to his neck, forehead and hands, cuts to his lip and nose, and puffy cheeks. He was complaining of pain in his knees and his glasses were missing. The witness took steps to put a stop on the complainant’s bank card.[25]The prosecution relied on the CCTV evidence to support the complainant’s account.[26]The appellant, Craig Higgins, in evidence said that he had been frequenting the bowling alley for about three weeks since moving back in with his mother. On 21st November he went there with Guy, the complainant, Ashley Gerard, Andrew Coleman and two others whose surnames he did not know. He arrived at about 19:30 and the complainant arrived shortly afterwards and came over and joined them. Everyone, including the complainant, was drinking from jugs of lager. Higgins also had a few lines of cocaine and a bit of MDMA powder. The complainant also took cocaine with him in the venue’s toilets. They stayed at the bowling alley, taking part in the karaoke, until about 23:30.[27]The appellants and the complainant left the bowling alley together and the complainant asked them if they could get some more cocaine and make a night of it. The appellants had some cocaine on them but not enough to last the night. They all walked together to the petrol station and no force or pressure was applied to the complainant to get him to accompany them and no violence was used.[28]At the cash machine the complainant gave them his card and PIN and the appellants together drew out £250. There was only one transaction using the cash machine as the complainant had said that £250 was his withdrawal limit. The complainant then suggested that they go into Somerfield to purchase some beers and get £100 cash back. Everything that happened in the shop was with the complainant’s consent. There was a period when the complainant was outside the shop on his own for about 3 minutes. No pressure was placed upon the complainant.[29]They then set off across a field where they were all having a laugh and a joke and messing around together. There was no violence used and nothing untoward occurred. They made their way to Guy’s house in Warren Road from where they made a telephone call to a drug dealer with a view to obtaining more cocaine. When they could not get through the complainant urged them to try again. The complainant was given his card and money back. More cocaine was consumed at the house, including by the complainant. Andrew Coleman was also present at the house.[30]They left Guy’s house to make their way to the drug dealer’s house. On the way they went to a Tesco store to obtain a further £50 as they were still short of money. Once at the dealer’s address they left the complainant to wait by some bollards as he was not known to the dealer. The complainant handed back to them the £350 that had previously been withdrawn in order to purchase the drugs. The appellants went into the dealer’s house and were there for about 5 minutes, which was longer than expected as the dealer was talking with them. When they left the house the complainant was no longer outside. They looked around for him and returned to Guy’s house to see whether he was there, but he was not. When they left him he had no injuries and he was back in possession of his bank card.[31]The appellant, Richard Guy,did not give evidence and no evidence was called on his behalf.[32]We turn to the first ground of appeal which concerns the manner in which the trial judge dealt with a question arising out of some evidence which the complainant gave. We take a summary of the evidence from the summing-up: Mr Bryan [for Higgins] in cross examination “I am going to suggest to you that everything that happened that night to you was with your consent and with your participation” – answer “that is not true”. Question – “and this is why you told the police through your father that it was a case of a lost wallet and the reason you went to the bank machine and then to the shop is because when you were in the bowling alley you were sharing cocaine with Richard and Craig at the alley”. Answer “that is not true, I don’t do drugs” – “and you decided a bit later on that you would like some more” – “that is not true” – he answered. The next question – “and they told you it was going to cost £400 and you agreed to go to a bank machine to get the money”. Answer “that is not true, the police did a hair sample” “What” asked Mr Bryan – “the police did a hair sample to see whether I had done any drugs that night”. “Well” said Mr Bryan and there was a pause, “you have given some very different descriptions of what took place that night haven’t you” – “no he answered” and then moved on to a different topic. That is it, verbatim. That is the only passage of evidence in this case concerning hair samples in respect of the issue of drugs.[33]Mr Bryan assured us that he was not seeking to establish that the complainant was a heavy cocaine addict, only that the complainant had wanted and used cocaine on that evening.[34]After the evidence had been given the jury sent a note: “Clive Sparton junior said he had had a drug test, who requested it, when was this done, what were the results”.[35]Without consulting counsel the judge said this to the jury just before he started his summing up: Before I forget, I will do some housekeeping as well. The note that one of you sent yesterday about the hair sample, I have been provided with a transcript of a little piece of evidence that touched on that. It occurred during Mr Bryan's cross-examination of Clive Sparton, and Mr Bryan was suggesting to Clive that at the bowling alley he was sharing cocaine with the two defendants. Clive said:
"That's not true. I don't do drugs."
From Mr Bryan:
"You decided a bit later on that you would like some more."
Answer: "That's not true." Question: "And they told you it was going to cost £400, and you agreed to go to a bank machine to get the money." Answer: "That's not true. The police did a hair sample." "What?" "The police did a hair sample to see whether I done any drugs that night." That was the passage in which he referred to the hair and the drug sample, clearly indicating -- although there is no further evidence on the point -- clearly indicating (a) that he does not do drugs and (b) they checked his hair to deal with that point. That is the totality of the evidence that you have on it. Whether you draw the inference that what he is saying there, is asserting there, is that, when they tested it, it proved negative for drugs, that might be what you read into it; but that is all you have to go on. Clive said: "That's not true. I don't do drugs." From Mr Bryan: "You decided a bit later on that you would like some more." Answer: "That's not true." Answer: "That's not true. The police did a hair sample."[36]Counsel for the defendants complained about the implied suggestion that the jury might draw the inference referred to in the final sub-paragraph above. The judge then said this in his summing-up: Now before I remind you of the piece of evidence in the case about that, before I remind you of that let me just prefix it by this observation – disregard everything that has been previously said about this piece of evidence, so wipe the slate clean in terms of any comment or observation or any erroneous reaction that was earlier given to you. What I propose doing now is quite simply unvarnished reading to you the passage of evidence in which this topic arose. The only passage of evidence in the entire case and what you make of this piece of evidence is entirely a matter for you.[37]Having set out the questions and answers the judge continued: That is the only passage of evidence in this case concerning hair samples in respect of the issue of drugs.[38]It is submitted on behalf of the appellants that the jury would have reached the conclusion that the inference that the complainant was asserting that when the hair was tested, it proved negative for drugs. That is how the judge invited the jury to consider the matter when he first answered the jury question. He did not tell them in the summing up when he corrected what he had originally said, that there was no evidence before the jury giving the results of the test to which the complainant referred.[39]We shall assume that the jury would have concluded that the test was negative and assess the safety of the conviction accordingly.[40]The hair had been taken and had been subjected to forensic analysis. The prosecution had served an expert report written by Kirsten Turner of the Forensic Science Service about the results but had not introduced them into evidence. In broad terms the report demonstrated, from the hair sample, that the complainant was not a regular user of drugs, but the expert was unable to say whether the complainant had consumed drugs on that evening.[41]Whilst not uncritical of the way that the judge handled this issue, it seems to us that there was a simple solution to the problem which counsel for the appellants could have taken and did not. If they were worried that the jury might have thought that the test vindicated the complainant’s assertion that he had not consumed drugs that evening, then they could have invited the prosecution to make an admission that the test did not vindicate this assertion. That was not done.[42]On the assumption that the jury may have concluded that the test showed that the complainant was not a regular user of drugs, we have considered whether we should now give permission to the appellants to obtain a further independent report to verify the conclusions in the report by Kirsten Turner (assuming also that such a report could now be obtained). There is, in our view, no material independent of the appellants to suggest that the complainant was a regular drug user and willing to spend large sums of money on cocaine. The appellants did not seek leave before us to cross-examine Kirsten Turner. In those circumstances we will not adjourn the case for the preparation of such a report and we dismiss this ground.[43]We turn to ground two which concerns the character direction given by the judge. He started by saying You have heard evidence, and you have heard quite extensive evidence, of the bad character (as the lawyers call it) of these two defendants, in contradistinction to Clive Sparton, who you know is not of bad character, has not been taken before the courts and prosecuted for any sort of crime.[44]None of the counsel who appeared before us could recollect any evidence that Sparton was of good character and had never been even prosecuted. One counsel thought there had been no such evidence. Mr Livingston thought that there must have been otherwise the judge would not have said it. It is accepted that he was of good character and had never been prosecuted.[45]Mr Lyons in his skeleton argument submitted on the basis of a passage in Archbold, 2010, 8-138 that such material was irrelevant. We have considerable doubts about that: see Phipson on Evidence, 17th Edition, para. 18-23 and ff. In any event, on the facts of this case, the fact that the judge said this to the does not affect the safety of the conviction.

The judge continued:

[46]What is the role of bad character in a case such as this? Well, you have got two contrasting accounts. You have the defendants, each in turn, through their lawyers and, in Mr Higgins's case, through him giving evidence himself, saying that Clive Sparton Jnr is telling a pack of lies; he is a perjurer; he is framing these two innocent defendants -- it seems to boil down to because he wants to get money back from the building society which he could not get back if he had simply lost his card with the PIN number in the wallet; and so Clive Sparton, although he has got no previous convictions, is telling a pack of lies about these two defendants and what they have done. He has been subject, as I say, to close scrutiny and attack. In a situation such as that, a court of law will say: well, hang on a moment, let us have a certain levelness of the playing field here. If you are making these attacks against this witness, let us know something about the person that is making the attack, because it may assist you in forming conclusions about the credibility of the attack, the credibility that attaches to the person that is making all these accusations of dishonesty and perjury.[47]No complaint is made about this passage.[48]Complaint is made about what the judge said next and Mr Livingston accepts that that the judge did not adopt a conventional way of dealing with the issue. The judge continued: The people who are making these accusations of dishonesty and perjury have, by any stretch of the imagination, a miserable record. They have been before the courts, although now still very young, many, many times. They are not people who have learned their lesson from the salutary experience of being taken to court, but they have come back time and again. It is not an exaggeration. Richard Guy has been taken to court, that is to say, he has been caught offending and they have decided to prosecute him, and they have taken him to court on 15 separate occasions by the age of 22. In the case of Craig Higgins, he has been caught offending on many, many occasions and his offending has resulted in nine court appearances. You know the sorts of things that they have been involved in. In the case of Richard Guy: stealing, assault, arson, burglary and theft, criminal damage, disorderly behaviour, criminal damage, aggravated vehicle taking, possessing cannabis, using vehicles improperly, attempted theft, assault, aggravated vehicle taking, attempted arson, taking without consent, stealing from a vehicle, interfering with a vehicle, criminal damage, criminal damage, stealing a bicycle, stealing, stealing, and so on. That is him. It tells you something about him. Craig Higgins: handling stolen goods, fraudulently using an Excise licence, disorderly behaviour, fraudulent use of an Excise licence and other driving matters, criminal damage, disorderly behaviour, assaulting a constable, disorderly behaviour, assault, disorderly behaviour, disorderly behaviour, pursuing a course of conduct amounting to harassment, and so on. So, you might think long and hard before acting upon the word of someone like that or the accusations made through their counsel of someone like that. But there is an important caveat. It must always be understood in a criminal trial that the mere fact that someone has come this way before and has got previous convictions does not make them guilty of the crime before the court. However dim a view you may have of them and however reluctant you might be to accept a single word they say, you do not convict someone with a bad record unless the evidence in the instant case makes you sure of their guilt. (Underlining added)[49]Counsel for the appellants drew our attention in particular to the underlined words. They submit that the attack on the credibility of the appellants was intemperate, disproportionate, out of line with the guidance in Hanson, [2005] 2 Cr. Ap. R. 21 and effectively directed the jury to ignore anything the defendants were saying and concentrate on an assessment merely of the evidence of Sparton and of the other evidence called by the prosecution.[50]Mr Livingston submitted that in the underlined passage the judge was doing no more than trying to ensure that the jury still concentrated on whether the evidence made them sure of guilt.[51]In our view the judge in this passage came close to usurping the functions of the jury.[52]In Taylor and Young [2004] EWCA (Crim) 1816, another division of this court said: 61. Mr Vere-Hodge [for Taylor] referred us to the case of Goodman (CACD, Dyson LJ, Silber J and HHJ Ann Goddard QC) unreported, 12 July 2002 (No 200005645/Z4). In that case the court held that the summing-up was “extremely unbalanced” and the appellant did not have a fair trial. The court said:
“16. ... The references to ‘you may think’ and ‘it is a matter for you’ were no more than formulaic expressions which did not touch the substance of what the judge was saying and how that would have been understood by the jury. It seems to us that this summing-up was so unbalanced and unfair that the appellant did not receive a fair trial.” 62. ... it is now accepted that judges should not express their own views on contentious issues. It is fairer to summarise to the jury the rival arguments of the prosecution and the defence rather than use the “formulaic expressions” of “you may think” and “it is a matter for you”
. It avoids the risk of an unbalanced summing-up and, we add, the costs associated with an appeal and a possible setting aside of the conviction. We should also not forget the strain which an appeal can impose in this kind of case on the victim’s family and friends. “16. ... The references to ‘you may think’ and ‘it is a matter for you’ were no more than formulaic expressions which did not touch the substance of what the judge was saying and how that would have been understood by the jury. It seems to us that this summing-up was so unbalanced and unfair that the appellant did not receive a fair trial.”[53]Nonetheless we have decided, not without some reluctance, that this passage does not render the convictions unsafe, given the strength of all the evidence against the appellants. In particular, the history of the withdrawals and attempted withdrawals, including those at Tesco, is quite inconsistent with the appellants’ case that the complainant was a willing participant in what happened..[54]We turn a ground raised on behalf of Guy only. He did not give evidence and the judge gave the jury the standard adverse inference direction and then said: Well if ... he didn’t go in the witness box because he was scared of being exposed by cross examination then plainly it is something you could put into the scales against him but you would not convict him wholly or mainly on the strength of that, it is just a factor which you could put in the scales as some slight support for the crown’s case but you would not draw an adverse conclusion from somebody not giving evidence unless you thought it was fair or proper and also you would not hold it against him unless you were satisfied that the prosecution’s case was so strong that it required an answer and secondly that the only reason he had not got an answer was because he feared cross examination would expose the weaknesses in his side of the story, such as it is. (Underlining added)[55]Mr Lyons submits that no such direction should have been given. The judge had, rightly, told the jury on the facts of this case that both defendants were either guilty or not guilty. Mr Lyons submitted that the jury would have inevitably considered the case of Higgins first and there was a danger that in deciding on the credibility of Higgins the jury would attach weight to the lack of any evidence from Guy.[56]We see no merit in this point. If the jury did examine the case against Higgins in a vacuum, as Mr Lyons submits, they would be entitled to say to themselves that the only evidence undermining the credibility of the complainant was that of Higgins and take that into account when assessing the case against Higgins.[57]For these reasons the appeals are dismissed.