McEwan, R. v [2011] EWCA Crim 1026

[2011] EWCA Crim 1026Case No 2010/3246/D3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 29 March 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE THOMAS
MRS JUSTICE DOBBS DBE
THE RECORDER OF REDBRIDGE
His Honour Judge Radford
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
JOHN MCEWAN
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr K Barry appeared for AppellantMr R Hall appeared for Crown
J U D G M E N T

LORD JUSTICE THOMAS: The attack on the complainant

[2]As long ago as 26th July 2007, Kevin Hutchinson, who it seems to be agreed was a local drug dealer, was attacked at his house by four men. Two were recognised by him as Elt and Reilly. The other who came to the house was not identified or known by Hutchinson or his partner, and the fourth man was the person who had driven them in the car, Hills. Hutchinson was grabbed and pulled outside and kicked. He was put in the car by the three men and driven by the fourth man, Hills. During the journey Hutchinson was beaten again and then taken out of the car and hit again. He was left where he was found by passers-by. As a result he sustained significant injuries. It is not necessary to set those out as this appeal is concerned with conviction only.[3]Although the appellant was arrested on the following day, there was insufficient evidence against him and he was not charged. Reilly, Elt and Hills were charged with various offences, including an offence under section 18 of the Offences Against the Person Act 1861 and kidnapping. The agreement of Reilly to give evidence against the appellant[4]In May 2009 the case against those three, namely Reilly, Elt and Hills came on for trial before His Honour Judge Lawson. On 11th May, Elt pleaded guilty to an offence under section 18. In the course of the hearing, Reilly sought a Goodyear indication. An indication was given by the judge on a basis of plea which had not been accepted by the Crown. A second hearing took place when an indication was given on the basis of the prosecution case and on the basis that Reilly would identify the fourth man who had been involved in the assault and attack on Hutchinson. In those circumstances he identified McEwan, the appellant in this case. Witness statements were taken from him in May and June of that year.[5]On 13th May, Reilly pleaded guilty to an offence under section 18, but although the prosecution stated that the offence of kidnapping would not be proceeded with, it appears no more formal step was taken to allow the charge to remain on the file.[6]Hills maintained his plea of not guilty. As it was apparent that the Crown could now bring a case against Hills and, on the basis of Reilly's evidence, against the appellant, it was decided that the trial should be stood over so that the appellant and Hills could stand trial together. The first trial[7]They duly stood trial in July of that year. Reilly was called to give evidence. During the course of his evidence it was discovered by counsel for the appellant that the charge of kidnapping had not formally been disposed. A submission was made under section 98(1) of the Criminal Evidence Act 1898 that in those circumstances Reilly could not be called as a witness as he was not competent to give evidence. After argument the judge upheld that submission and discharged the jury. We mention the trial not because of the relevance of section 98(1) of the Criminal Evidence Act 1898, but because it emerged during the course of Reilly's evidence that although he had pleaded guilty to the offence under section 18, in the course of his evidence, given during that trial, although admitting his presence at the scene, he was effectively denying any participation in the attack. The second trial[8]It was in those circumstances that the trial from which this appeal originates came on on 11th January 2010. It was heard at the Crown Court at Lewes by His Honour Judge Anthony. The first application that was made at the trial was to exclude the evidence of Reilly. It is convenient before turning to that application, which forms the first grounds of the appeal, briefly the summarise the other evidence in the case. The other evidence against the appellant[9]It is accepted and conceded by the Crown that unless Reilly gave evidence against the appellant that the appellant was present when Hutchinson was attacked and participated in the attack, there was no case to answer on his presence at the scene or his participation in the attack. However, there was other evidence which went to support the presence of the appellant at the scene and his attack. That can be summarised briefly. First there was evidence of association on the evening before the attack between the appellant and the others who were admittedly present. Secondly, the appellant had admitted giving a false alibi originally and it transpired, although he put forward a different alibi at this trial, he called no evidence to support it. Thirdly, he had not told the truth at his interview. The prosecution were able therefore to rely on those matters in support of his presence and participation. The prosecution before us have also said they relied upon the description by Hutchinson and his partner. That description could not really amount to any form of identification upon which the jury could rely. It could at the most lend some very vague support to the evidence given by Reilly. Reilly's evidence was in the circumstances therefore not the sole evidence, but without it the case simply could not have proceeded. Should the evidence of Reilly have been excluded?[10]The first ground of the appeal therefore relates to the application to exclude Reilly’s evidence. It is important to emphasise that it was put at that stage on two principal bases, as is apparent from the way in which the learned judge dealt with the matter. First, it was said that under section 1 of the 1898 Act, although it is accepted that the appellant had pleaded guilty, he was still not a competent witness. Secondly, it was said that the evidence should not be admitted as it would be unfair to do so under the terms of section 78 of the Police and Criminal Evidence Act 1984. We will deal with each of those bases separately. The competence of Reilly: s.53(4) of the Youth and Criminal Evidence Act 1898[11]Although the first argument was advanced on the basis of the Criminal Evidence Act 1898, it seems to us that the point should have been taken under the relevant statutory provision which was section 53(4) of the Youth and Criminal Evidence Act 1999. It makes, however, no real difference to the result.[12]It was the position at common law that an accused could not be called to give evidence at his trial. The 1898 Act modified that rule to allow the accused to give evidence in his own defence, but did not allow a defendant who was charged in the criminal proceedings to give evidence in the trial for the prosecution. In a series of cases, it was decided that a person was not charged for the purposes of the Criminal Evidence Act 1898 if he had previously pleaded guilty. There are a whole series of cases which make that clear, beginning with R v Bell (1965) 1 QB 402, better known as the case of the Great Train Robbery.[13]When Parliament enacted section 53 of the Youth Justice and Criminal Evidence Act they reproduced that law in subsections (4) and (5) of section 53. The sub-sections provide:
"(4) A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings). (5) In subsection (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason)."
[14]The provisions of subsection (5) make clear what has been the law for a number of years, as we have already set out, that if a person pleads guilty to the indictment, he is no longer incompetent to give evidence for the prosecution against others charged on that indictment.[15]It has been argued by Mr Barry in this appeal that this court should interpret the relevant provisions so that where a person gives evidence which indicates that his plea has been equivocal or there remains a dispute as to the basis of his plea, he remains a person charged even though he has pleaded guilty.[16]That in our judgement is an argument that is rendered impossible by the provisions of subsection (5). However, in any event, even if that provision had not been enacted, it is clear to us that if a person pleads guilty, that is sufficient to render him a person no longer charged, until he applies to set aside that plea. The plea given by Reilly in this case was plainly an unequivocal plea. We describe below his evidence given at the hearing that took place in 2009 and at the trial in 2010, but the fact that he might in evidence suggest that he was not a participant in the offence does not in any way affect the fact that he had pleaded guilty and therefore was competent to give evidence.[17]Furthermore, the fact that the basis of plea may be the subject of dispute is again irrelevant. He had pleaded guilty to the offence. He was no longer in the charge of the jury and therefore was competent to give evidence. It seems to us that the first basis on which the appellant sought to exclude the evidence of Reilly was one that was doomed to failure on this appeal, as it was before the judge. Exclusion of Reilly’s evidence: s.78[18]The second challenge, however, presents at first sight a much more promising line of argument. It is necessary to explain a little more about Reilly's evidence.[19]Reilly was consistent about two matters throughout his evidence. First, that he had been present, and secondly, from the time he decided to name the appellant, that the appellant was present and a participant. About those two points he was entirely consistent.[20]However, as to his own participation, although he had indicated in his statement and on other occasions that he was a participant, in the evidence that he gave before the judge in the hearing in July 2009 he went back on that. It was therefore open to counsel for the appellant to put forward a submission under section 78 that in the circumstances it would be unfair to allow his evidence to go before the jury. First, it was said that he was an accomplice and there was an inducement for him to give untruthful evidence by reason of the fact he had not been sentenced and the length and terms of his sentence might depend upon the evidence that he gave. Secondly, it could be said that he was inherently unreliable in that he had given differing accounts of his own participation.[21]The situation facing the judge was not alleviated by the fact that the Crown refused to nail its colours to the mast. It, in our view, wrongly took the position that it was entitled to open the case on the basis that the evidence which Mr Reilly would give would show his participation in the offence. It must have been obvious to the Crown that, in the light of the evidence given by Reilly, he might not give that evidence, as he had made clear in his evidence given in July 2009 that he was not an active participant.[22]When the judge came to approach the matter, it is apparent from his ruling that it was the first of the arguments advanced on behalf of the appellant that was at the forefront of the submissions that were made. The emphasis on the first argument in the submissions under s.78 followed on from the argument in relation to section 1 of the Criminal Evidence Act 1898; it is plain that that was the dominant argument. The second argument, which has been advanced before us today, with much greater prominence, it appears (and as has been accepted) was not advanced so clearly before the judge.[23]We therefore have to consider the way in which the judge exercised his discretion with that in mind. He plainly applied the right principles and therefore the question for us is whether the judge exercised his discretion under section 78 in a way that no reasonable judge should have done?[24]Another judge might have taken a different view to that taken by this judge, if the matter had been argued before him in the way in which it had been argued before us, particularly in the light of the conduct of the Crown in refusing to nail their colours to the mast. A judge might have held it was unfair to admit Reilly's evidence under section 78 as it was unreliable. Nonetheless we consider that it was within that margin of discretion which must be allowed to a judge, particularly taking into account the way in which the case was put before him, to admit that evidence. Although it is not uncommon for a person always to seek to minimise his own involvement and be untruthful in relation to that, nonetheless Reilly was entirely consistent about his presence at the scene and, from the time he decided to name the appellant about the appellant's presence and participation. A judge would be fairly entitled to say that he was capable of telling the truth on these matters and it would not be unfair to allow the jury to rely on that part of his evidence in relation to his identification of the appellant, despite his unreliability on his own participation.[25]In the result, therefore, although the argument today has been put forward to us by Mr Barry on the appellant's behalf with great attraction, we nonetheless do not consider that the judge could be said to have acted outside that ambit of discretion open to him under section 78.[26]We turn to the other three grounds of the appeal which can be dealt with more shortly. Evidence of bad character[27]Reilly had a bad record. The appellant had a bad record. It is accepted that the attack made on Reilly was such that it plainly made the bad character of the appellant admissible in principle. An application was made that evidence should be admitted on the basis of propensity and because of the on the attack on Reilly. The judge decided it should be admitted on the basis of the attack on Reilly. The point taken on behalf of the appellant before the judge was that it should not, on the basis of the authorities and in particular Hanson, because this was a weak case and it was not right to admit it.[28]It seems to us that the judge was right in the decision he took. We would not entirely go along with the way in which he expressed himself. In our view the judge was entitled to say that on the evidence that he had heard there was evidence from Reilly which the jury could believe and, if they believed it, then on that basis this was not a weak case. It seems to us therefore that this was a case in which the bad character evidence could be admitted. The submission of no case to answer[29]The next ground of appeal relates to the submission that the judge was wrong in his decision that there was no case to answer. By this time the judge had heard the whole of the evidence. It is plain beyond argument that the judge had taken a very adverse view of Reilly's credibility by that time. We can say that for sure because in the remarks he made when sentencing Reilly he rejected the whole of Reilly's evidence in which he sought to minimise his participation.[30]The question therefore which the judge must have had to consider at that stage was whether if Reilly's evidence was so unreliable as to his own participation, was it safe to allow the case to proceed to the jury on the basis of Reilly's identification of the appellant as being present and as being a participant? If this case had solely rested on the evidence of Reilly, we would doubt very strongly whether this was a case that should have been left to the jury. However, as we have already summarised, there was the other evidence in the case. It seems to us, therefore, that the judge was entitled to say that on the basis of the consistency of Riley about his own presence and in the consistent identification of the appellant from the date he decided to name him, in the light of the other evidence, the case was sufficiently strong to be left to the jury. The summing up[31]We turn to the fourth ground of the appeal which relates to the summing-up. It is clear from what is before us that the careful directions the judge gave were discussed with counsel. The judge very carefully directed the jury in relation to the previous convictions of Reilly; he also gave the jury very careful directions about the way in which they should approach Reilly's evidence. Furthermore he gave careful directions in relation to the way in which they could take into account the previous convictions of the appellant, directing them properly in accordance with the law that as the convictions had been admitted, they could be relied upon also in relation to propensity.[32]Mr Barry in the course of his eloquent submissions to us on other points, conceded that the points in relation to the summing-up were supplementary. He was in our judgment right to do so. The real issues in this appeal related to the admission of Reilly's evidence under section 78 and the question of whether there was a case to answer. Given the admission of the evidence and the decision on the case to answer, we think the judge summed the case up fairly and properly to the jury. The jury could have been under no conceivable doubt whatsoever about the issues relating to Reilly's reliability. Conclusion[33]However, at the end of the day, there is only one consideration for this court and that is whether this conviction was safe. In our judgment, it was. The jury, it is plain from their verdicts in respect of the appellant and Hills who was tried with him, were careful in their consideration of the evidence. There was, as we have indicated, other evidence which supported Reilly's identification. In the result therefore, looking at the whole of the evidence and asking ourselves the question whether this conviction is safe, we are satisfied that it is. Despite, if we may say so, the eloquent way in which Mr Barry has put all the points that were properly made on the appellant's behalf, we must dismiss this appeal.