Jessop v R [2010] EWCA Crim 517

Case No 200902604 C2[2010] EWCA Crim 517
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SHEFFIELD CROWN COURT
HHJ Goldsack QC
T20080913
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/03/2010
Before
LORD JUSTICE TOULSONMRS JUSTICE COXCOMMON SERJEANT OF LONDON HIS HONOUR JUDGE BARKER QC(SITTING AS A JUDGE OF THE COURT APPEAL CRIMINAL DIVISION
Between
STEPHEN JESSOPAppellantREGINARespondent
Mr W Lowe QC instructed for Mr JessopMr F P Watson QC instructed for RespondentHearing Hearing date: 17 February 2010
Judgment
[1]Spencer Jessop appeals with leave of the single judge against his conviction on 8 April 2009 at Sheffield Crown Court before HHJ Goldsack QC of an offence of violent disorder, for which he was sentenced to a 10 month detention and training order. He was tried with 6 others on an indictment containing 2 counts, murder and violent disorder, but at the close of the prosecution’s case the judge upheld a submission that he had no case to answer on the count of murder.[2]Two co-accused, Mendez and Thompson, were convicted of murder. They also appealed and the three appeals were heard together. The background facts are set out in our judgment relating to Mendez and Thompson, and there is no need to repeat them.[3]As we noted in that judgment, the evidence was complex and disjointed but the judge took considerable pains to try to present it to the jury in his summing-up in a coherent fashion. Having done so, he summarised what he saw as the main points in the case for and against each defendant. In relation to this appellant he said as follows:
“The main witness against Spencer Jessop is Gemma Reece. She is not a witness about whom any special warning has been given and she told you she had not been drinking. On her account Spencer Jessop left her side, and went across, with a metal bar, to join the already attacking group. She said she then saw Adam Jackson take hold of Spencer Jessop in a bear hug. Well, if you are sure that account of Gemma Reece is right that is sufficient to find Spencer Jessop guilty of violent disorder. There is other evidence. Adam Jackson told you Spencer Jessop was in the original chasing group and you will recall he changed his account to you and said it was in fact Spencer Jessop that he pulled off, not Reece Mendez as in his statement. Gemma Galfsky described Spencer Jessop “acting like a weirdo” in the second part of the incident and encouraging others to continue the assault, “Fucking knock him out. Go on, knock him out”
. Seaon Thompson told that Spencer Jessop was hitting Dale with a metal bar outside number 40 in the second part of the incident. The defence say to you that Spencer Jessop gave a straightforward account to the police and you can rely on that. He told them he saw Dale being attacked and he went over, saw a lad with a stick trying to hit him and disarmed that lad, and he then played no further part in the incident. If that is, or may be, true then of course he is not guilty. Spencer Jessop relies upon Serina’s evidence. She told that she saw him somewhere near where Dale was attacked in the second part but she did not see him do anything because he was with his girlfriend’s sister. It was Spencer Jessop’s counsel who submitted to you that you may think several of the accused saw more than they have been prepared to tell and pointed out that if Spencer Jessop gave evidence he would have to answer questions about the others. Well, he has not given evidence. Given the witnesses who implicate him, is it your judgment there is a case strong enough to require an answer? If so, why has he not given evidence? Do you find it appropriate to draw adverse inferences?”[4]There are five grounds of appeal.[5]Ground one is that the judge ought to have directed the jury that they should not draw any adverse inference from the appellant’s failure to give evidence if they thought it possible that he had not given evidence because he did not wish to answer questions about the involvement of his co-accused.[6]In the first part of his summing-up the judge gave the jury text book general directions on permissible inferences from a defendant’s silence at trial. In particular, he directed them that they must not draw any conclusion against an accused from the fact that he had not given evidence unless satisfied, first, that the case against him was so strong that it clearly called for an answer and, secondly, that the only sensible explanation for silence was that he had no answer or none that would bear examination. In the passage quoted, the judge reminded the jury of the suggestion made by Mr Lowe QC that the appellant may have not wanted to give evidence because of reluctance to implicate others. The judge was under no duty to say more.[7]Grounds two and three relate to the evidence of Adam Jackson. Jackson’s evidence changed. He first said that Jessop was in the group that originally chased after the deceased. However, in cross-examination by Mr Lowe, he agreed that Jessop was not part of that group, and the judge upheld the submission that he had no case to answer on the murder count because of lack of evidence on which the jury could safely conclude that he was involved prior to the moment of the stabbing. Jackson did, however, say that Jessop was involved in trying to attack the deceased and that Jackson pulled him off, but in his written statement he had identified Mendez as the person he had pulled off the deceased.[8]Ground two is that the judge was wrong to say that “Adam Jackson told you Spencer Jessop was in the original chasing group and you will recall he changed his account to you and said it was in fact Spencer Jessop that he pulled off, not Reece Mendez in his statement”. The judge ought to have said that Jackson’s evidence was that Jessop was in the attacking group, not the chasing group. The problem was that Jackson changed his evidence in two respects but in this sentence the judge only reminded the jury of his change of account in one respect.[9]We do not regard this as a point of any material significance. The issue on count two was whether Jessop was a participant in the violent disorder which undoubtedly occurred. For that purpose it did not matter whether his participation came before or after the moment of the stabbing. The question was whether Jessop was one of those trying to attack the deceased or whether, as he told the police, his only involvement was to disarm one of the attackers.[10]Ground three is that the judge failed to tell the jury, when reminding them of what he said was Jackson’s evidence, of the criticisms that could fairly be made of that evidence.[11]In the first part of his summing-up the judge gave the jury a full and fair direction about inconsistencies in the accounts given by prosecution witnesses and how the jury might view them. In the course of that direction he said:
“Occasionally there was a fundamental change to a witness’ account to the extent of changing who it was he allegedly saw doing something from one accused to another. Adam Jackson had said in his statement he pulled Reece Mendez off Dale in the first part of the incident. Before giving evidence he told the prosecution, after reading his statement, that that was wrong and he made a further statement that it was Spencer Jessop that he pulled off, and that was his evidence before you.”
The judge then referred to another witness. He continued:
“You will need to examine the evidence of those two witnesses with particular care. You have heard many submissions about them. Why did they change their accounts? Is there any possibility of mistake or must one at least of the accounts have been a lie? If so, can you rely on anything that witness said? If you think the change of account was so fundamental that you cannot rely on anything the witness said, reject his evidence. But since all matters of evidence are for you, if, after careful consideration, you are sure he was telling the truth in parts of his evidence you can rely upon it.”
[12]When the judge came to summarise the case for and against Jessop in the passage cited above, he reminded them that Jackson had initially identified Mendez as the person he had pulled off the deceased. We do not consider that he was under a duty to repeat the earlier direction which he had given to them about the need to consider Jackson’s evidence with particular care or to say more about the criticism that could be made of his evidence.[13]Ground four is that the judge wrongly sought to elevate the evidence of Gemma Reece by saying that she was not a witness about whom any special warning had been given and that she said that she had not been drinking. In fact, submitted Mr Lowe, Gemma Reece had arrived with Mel’s party after she had been drinking with them in the Bull public house in Ecclesfield. Her evidence, according to the judge’s summing-up, was that she had indeed been with other members of Mel’s group in the Bull but that she had not been drinking alcohol. More importantly, she was not a witness about whom any special warning was required. There were many others who fell into a different category because they had originally been interviewed as suspects or in circumstances where they might have had cause to fear that the police might see them as suspects. In the first part of his summing-up the judge had warned the jury to bear in mind with those witnesses that they might have a motive for lying; to divert blame from themselves, in the case of those who were arrested, or to avoid being arrested. With so many witnesses, it was not improper for the judge to remind the jury that Gemma Reece did not fall in that category.[14]Ground five is that when the judge reminded the jury of Thompson’s evidence that Jessop was hitting the deceased with a metal bar in the second part of the incident, he ought to have reminded the jury of the weaknesses in Thompson’s evidence and, in particular, that this part of his evidence emerged for the first time in cross-examination by Mr Watson.[15]Thompson was the only defendant who gave evidence. In the first part of his summing-up

the judge said this about the effect of Thompson’s evidence in relation to co-accused:

“What Seaon Thompson said in evidence about some of the co-accused is evidence now in the case, and can be relied upon by you in coming to your decisions. But as with other witnesses, it is necessary for me to urge caution when considering what he said about other accused because he may have been more concerned about protecting himself than speaking the truth, particularly if he said things he had not said when he had the opportunity to do so to the police. But, as with other witnesses whom I have given you warnings about, as long as you bear that warning in mind again it is a matter entirely for your judgment whether you feel sure that what he said in his evidence about any other accused is true.”
[16]The judge had to ensure that all defendants were treated fairly. Having given that general warning, we do not consider that he was under a duty to repeat it when he came to each part of Thompson’s evidence which implicated a co-accused. For the judge to have identified on each occasion the potential weaknesses in Thompson’s evidence could have had the potential to be unfair to Thompson. Jessop had the opportunity, if he wished, to give evidence contradicting Thompson’s evidence.[17]Overall, we see no grounds to consider Jessop’s conviction to be unsafe and his appeal is dismissed.