Stredder, R. v [2010] EWCA Crim 482

[2010] EWCA Crim 482Case No 200806709 C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 3 March 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE STANLEY BURNTON
MR JUSTICE COLLINS
MR JUSTICE DAVIS
Between
R E G I N ACrownv
Between
SHAUN TERRANCE STREDDER
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2AYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss J King appeared for AppellantMr J Wigoder appeared for Crown
J U D G M E N T

LORD JUSTICE STANLEY BURNTON:

[1]On 12 November 2008, at Nottingham Crown Court before Mr Recorder Sampson, the appellant was convicted of two offences of robbery. He had earlier pleaded guilty to three counts of theft. He was sentenced on the following day to seven years' imprisonment for the robberies and two years on the thefts; all those sentences to run concurrently, a total of seven years.[2]There was a co-accused, a man called Maxwell, who pleaded guilty to five counts of robbery, including the robberies of which this appellant was convicted. Stredder appeals against his conviction with leave of the Single Judge. The ground of appeal for which leave was given relates to the admission before the jury of the guilty pleas of Maxwell.[3]It is sufficient to outline the relevant facts of this case. The victims were two young girls. They were in Nottingham City Centre. They were approached by two men, Maxwell and the appellant, who asked if they were lost and offered to show them the way to the bus station. The girls went with the men, no doubt believing that nothing terrible was going to happen to them. They were led down an alleyway and at that point they gave up their mobile telephones to Maxwell.[4]The circumstances in which they did so were the subject of the counts of robbery. The prosecution case was that in that laneway a knife was produced. Indeed it was handled by the appellant, and frightened by the threat of the use of a knife, the girls gave up their telephones. It was, in other words, a robbery with a knife.[5]The case for the appellant was not consistent. In interview, after his arrest, he said that he had not been present, and it is accepted, on his behalf, that his interview consisted effectively of lies. The evidence he gave, which was reflected in the cross-examination of the girls, was that he innocently accompanied Maxwell. He had no idea that anything was going to happen. At one point, however, down the laneway, Maxwell became aggressive at which the girls handed over their telephones to him. He played no part in that at all. He was an innocent bystander. He went off afterwards having played no part in what had taken place. What had taken place was admittedly a theft, but it was not a robbery. There had been no knife, and he had played no part in any offence.[6]After the cross-examination of the girls there was argument as to whether Maxwell's pleas of guilty to the robbery should be admitted. Provided the pleas of guilty did not foreclose or shut off any issue which had been properly raised by the defence, there was no reason why, in our judgment, those pleas of guilty should not have been admitted. They were clearly admissible as evidence that there had been a robbery committed by Maxwell. They were not of course evidence that any offence had been committed by the appellant.[7]The admission of the guilty plea was consistent with, one supposes, three possibilities: one was that Maxwell had, for reasons of his own, made an admission that he had participated in, or been guilty of, robberies, which he had not in fact committed and which had not taken place. One can leave that aside as being unlikely. The second possibility was that there had been a robbery committed by him by the threat of violence not involving a knife, because it was common ground he had become aggressive with the girls. The third possibility was that a knife had in fact been used, that Maxwell was a party to the use of the knife, or the threat of a knife, and had pleaded guilty on that basis.[8]The case was brought against the appellant on the basis that if a knife had been produced, and he was a party to the production and threat of the use of a knife, he was guilty of robbery, but otherwise not. In other words, the prosecution did not bring the case on the basis that the robbery may have been committed without a knife. That was the basis on which the case was brought, and that was the basis on which the case was fought.[9]Mr Wigoder, on behalf of the prosecution, has explained that there was a good reason for that forensic approach, namely that the prosecution wanted a clear finding whether or not there had been a robbery with a knife, rather than possibly, on one view, a robbery which did not involve a knife, but just involved aggression towards the girls which would lead them to give up their telephones.[10]Provided it was made clear to the jury, in due course, that the plea of guilty by Maxwell was not evidence that anyone had used a knife, then there could have been no unfair prejudice to the appellant in the admission of those pleas. In those circumstances the admission of Maxwell's conviction would have left open(a) whether a knife had been used and(b) if so, the appellant had been a party to a robbery with a knife. However, if that were the case the matter had to be carefully explained to the jury. They had to be told clearly that the pleas of guilty of Maxwell, which had been put before them, as in due course they were, were not evidence that any knife had been used. The risk was that if the case was put to the jury on the basis of knife/robbery, no knife/no robbery, they would infer from Maxwell's plea of guilty that he admitted a knife had been used.[11]That was contrary to the case of the appellant, and given the weight likely to be attached by a jury to Maxwell's pleas of guilty it would drastically undermine his defence that there had been no knife, and therefore if no knife, on the way the prosecution put their case, no robbery, and no robbery of which he had been guilty.[12]The ground of appeal, as we have said, is that the Recorder was wrong to have permitted the prosecution to adduce evidence of Maxwell's pleas. We do not think that that ground is well-founded, provided a correct and clear direction was in due course given to the jury separating out the possibility of a robbery without a knife, and the issue of robbery with a knife in which the appellant participated, there would be no unfair prejudice caused to the defence in the circumstances of the present case.[13]In our judgment, the difficulty with this conviction is not the admission of the guilty pleas of Maxwell, it is the directions given by the judge in his summing-up, which did not separate out the issues in the way we have said was necessary. The clearest demonstration of that is at page 4D of the transcript of the summing-up where the judge said:
"In this case, the prosecution say a knife was used to force the girls to hand over the mobile phones. If you are not sure about this issue, the use of the knife, then you must acquit the defendant; the element of a threat of force is not proved. If you are sure, ladies and gentleman, that a knife was used and that the defendant knew that to be the case, go on to consider whether the defendant played any part or not in this offence of robbery."
That part of the summing-up elided two issues: one was the use of a knife and the second was whether a robbery had taken place.[14]The Recorder, when giving his direction, permitted Maxwell's guilty pleas to be adduced and in his summing-up made it clear to the jury that there was no issue, but that a robbery had taken place. That may well be the case. Looking at the matter realistically, if one accepts that the aggression shown by Maxwell, even without a knife, constituted a threat of violence which led to the girls giving up the telephones, that would have been consistent with the appellant's case, with the appellant's evidence and indeed with the girls' evidence, leaving aside their evidence as to the use of a knife.[15]However, once robbery and a knife were equated the jury were left to infer that Maxwell by admitting robbery was admitting a knife had been used. That would then have led the jury to consider that there was powerful evidence in those admissions that there had in fact been a knife, and to use that conclusion against the appellant.[16]In those circumstances we consider that there was sadly a misdirection in the summing-up. We have considered carefully whether the conviction is nonetheless safe. Having regard to the fact that the case was fought on the basis that knife equals robbery, no knife equals no robbery, despite the strong evidence against the appellant, we consider we cannot be clear that the jury would, in any event, have convicted.[17]In those circumstances we propose to allow the appeal. There is a renewed ground of appeal, which was rejected by the Single Judge, that the convictions demonstrated by the appellant's own pleas to a number of thefts which took place shortly after these alleged robberies should not have gone before the jury. We have not heard full argument on that renewed ground. We have to say that our provisional view is that there was ample reason for those convictions to be put before the jury, and no possible unfair prejudice in their being admitted. As it is, however, we feel compelled to quash the convictions for robbery.

LORD JUSTICE STANLEY BURNTON: Is it proposed to seek a retrial?

[19]MR WIGODER: My Lord, it was my understanding that for a robbery with a knife one cannot seek a retrial. If I have that wrong, then yes the Crown will seek a retrial.

LORD JUSTICE STANLEY BURNTON: Why can you not seek a retrial?

[21]MISS KING: I raised this with my learned friend earlier. Section 75 of the Criminal Justice Act 2003 deals with cases that may be retried.

LORD JUSTICE STANLEY BURNTON: Which page are you looking at?

[23]MISS KING: The 2010 edition. It is page 1214. It is Chapter 7, paragraph 260 beginning: "This part applies to a person who has been acquitted of a qualifying offence" and it then sets out the ways in which that acquittal--

LORD JUSTICE STANLEY BURNTON: He has not been acquitted, the conviction has been quashed.

[25]MISS KING: On appeal against conviction it is (i)(b), the point is the qualifying --[26]MR JUSTICE DAVIS: Do these statutory provisions take up any impact at all when the Court of Appeal quashes a conviction?

LORD JUSTICE STANLEY BURNTON: It refers to acquittal on an appeal against conviction on proceedings in an indictment. He has not been acquitted. If he had been acquitted he could plead autre fois acquit.

[28]MISS KING: My Lord, I confess the use of the word "acquittal" or "acquitted" is confusing, but it specifically says that the Act refers to a person who has been acquitted on appeal against conviction and proceedings on indictment, which in my submission can only mean following the quashing of a conviction.

LORD JUSTICE STANLEY BURNTON: What the section is dealing with, on one view, is where it is not possible to retry someone because there has been an acquittal and what offences are encompassed within that acquittal. What does Mr Wigoder say? Is it your submission he cannot be retried?

[30]MISS KING: Yes, on the basis of this provision.

LORD JUSTICE STANLEY BURNTON: That is an absolutely drastic assumption.

[32]MR JUSTICE DAVIS: I have never heard this submission before. Section 75 is not designed to be simply quashing an appeal against conviction.[33]MISS KING: If I am wrong that this submission does not apply, so be it.

LORD JUSTICE STANLEY BURNTON: What does Mr Wigoder say?

[35]MR WIGODER: It does not apply. These are parts that have been brought in recently to deal with, if my memory serves me, various provisions. They do not affect the power.

MR JUSTICE DAVIS: Having been acquitted and someone admitting--

[37]MR WIGODER: That is right. The retrial provisions, in those circumstances, do not apply to a case such as this.

LORD JUSTICE STANLEY BURNTON:

[38]It is listed in Part 1 of Schedule 5. What does Part 1 of Schedule 5 say? If you are right, then the possibility of a retrial has gone out of the window.[39]MR JUSTICE COLLINS: If you look at page 1153 it is section 7 of the Criminal Appeal Act 1968, which is still, as far as I am aware, enforced. Section 75 deals with particular offences, serious offences, but the general power is, is it not, in section 7(1)?

LORD JUSTICE STANLEY BURNTON: The question is whether that has now been qualified.

[41]MR JUSTICE DAVIS: With respect, the section you rely on relates to an acquittal. This court has quashed the conviction. These sections were introduced by people who were acquitted and then about a week later said, "Of course I did it and got away with it" and several people overheard it. It is nothing to do with simply quashing the conviction on appeal. We have not acquitted this appellant.[42]MR JUSTICE COLLINS: This is a serious offence. It is limited to serious offences and is a much more general power of retrial following acquittal, but limited, as I say, to serious matters. The power of the Court of Appeal to direct a retrial is still, I think, as far as I am aware, in section 7 of the Act. It has never been suggested, as far as I know, that the power to retrial has disappeared as a result of section 75.

LORD JUSTICE STANLEY BURNTON: Section 75 is about retrying someone when you find DNA afterwards. That is what I said in the first place. We have quashed a conviction, which is a different thing from acquittal.

[44]MR JUSTICE COLLINS: You can see section 7, as Archbold records, is printed as appeal by inter alia a section amended by the Criminal Justice Act 2003.

LORD JUSTICE STANLEY BURNTON: We are against you.

[46]MISS KING: I do not press it and apologise for misdirecting.

LORD JUSTICE STANLEY BURNTON: You do not have to apologise for presenting your submissions, which you have done very clearly during the course of the day. Is there any reason why we should not order a retrial?

[48]MISS KING: My Lord, it seems to me that the test is whether or not the interests of justice require it. In carrying out that test I would urge you to consider what may have led to the imposition of the section we have just been looking at. In separate circumstances there would be no retrial following an acquittal.

LORD JUSTICE STANLEY BURNTON: He was not found not guilty by the jury. We have simply said there was an error in the summing-up.

[50]MISS KING: Accordingly the conviction was unsafe. If you are not with me on that point I simply pray in aid the length of time it has been since the original offences, the age of the complainants and whether or not their evidence will be cogent at the time of any retrial.

LORD JUSTICE STANLEY BURNTON: These were very serious offences and for there to be no determination of guilt of someone who, on one view, produced a knife during the course of the offences, is inimical to the interests of justice.

[52]MR JUSTICE DAVIS: When your client has accepted a liability for a lesser offence of theft, if you are right, he walks away, which maybe he should, but perhaps that should be after the jury decided to acquit him.[53]MISS KING: I urge you to consider.

LORD JUSTICE STANLEY BURNTON: If he is acquitted, he is acquitted next time. If not, a substantial sentence will be appropriate. At the moment we see no reason why the interests of justice do not require a retrial.

[55]MISS KING: I cannot improve on the submissions I have made in that regard.

LORD JUSTICE STANLEY BURNTON:

[56]We allow the appeal and quash these two convictions: counts 5 and 6. He is to be retried on those counts. We direct that a fresh indictment be preferred and that he be re-arraigned on the fresh indictment within two months.[57]Are there any applications? Is he still in custody on the other offences, or not?[58]MISS KING: It was two months consecutive.[59]MR JUSTICE COLLINS: He would probably have been released at half time and that would have been last November.[60]MISS KING: In relation to the two years, yes.

LORD JUSTICE STANLEY BURNTON: In cases such as this, and particularly, it seems to me, at the moment, if there is an application for bail, it should be made to the Crown Court. Do you want to say anything about that?

[62]MISS KING: I am content to deal with it in that way. An application can be made on notice in writing before the Crown Court.

LORD JUSTICE STANLEY BURNTON: We remand in custody, subject to any application that Mr Stredder makes to the Crown Court to be released on bail. We order representation for retrial, so you will have a representation order for the retrial. I do not think it is necessary to make any order restricting reporting in the proceedings. There will be a representation order for the solicitors. The retrial will be before the presiding judge of the East Midland circuit. Thank you both for your assistance.